Ragusa v. Streator Police Dept.

• Decision Date: 31 December 1981
• Docket Number: No. 81 C 4887.,81 C 4887.
• Citation: 530 F. Supp. 814
• Parties: Alan RAGUSA, Plaintiff, v. The STREATOR POLICE DEPARTMENT, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

530 F. Supp. 814

Alan RAGUSA, Plaintiff, v. The STREATOR POLICE DEPARTMENT, et al., Defendants.

No. 81 C 4887.

United States District Court, N. D. Illinois, E. D.

December 31, 1981.

Daryl Driver, Kelly & Driver, LaSalle, Ill., for plaintiff.

Russell Eggert, O'Conor, Karaganis & Gail, Ottawa, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Alan Ragusa ("Ragusa") sues the Streator Police Department,¹ its Chief of Police David Kaschak and Officer William Bohne in a purported civil rights action under 42 U.S.C. § 1983 ("Section 1983"). Both policemen are alleged to have deprived Ragusa of property without due process of law by having impounded Ragusa's 1969 GMC pickup truck² and then having "refused or neglected to complete the proper release forms when duly requested to do so by Ragusa" (Complaint ¶ 9). While the vehicle was in custody the officers "or others not presently known to Ragusa intentionally or negligently removed or allowed to be removed various items of personal property" (Complaint ¶ 10) of an alleged total value of some $1100, and the windshield was damaged requiring $160 in repairs. Finally the officers "or others not presently known to Ragusa either sold the aforesaid property at auction without notice to Ragusa or otherwise intentionally or negligently converted that property to their own personal use" (Complaint ¶ 11).

Defendants have moved to dismiss Ragusa's Complaint. For the reasons stated in this memorandum opinion and order, their motion is granted in part and denied in part.

Ragusa's Failure To State a Federal Claim for Negligence

Civil case filings in this District Court during 1981 have once again followed the familiar pattern of breaking all previous annual records by a wide margin. As a concomitant to that increase without any corresponding increase in the number of judges,³ calendars grow even larger and more unmanageable. To some extent the increased influx is due to expanded sources of federal jurisdiction. But all too much of this growth industry is traceable to frivolous actions (in the federal sense) like Ragusa's negligence claim.

Defendants' supporting memorandum said they would (as they must) treat the Complaint's allegations as true for purposes of their motion. Despite that, defendants have made a number of factual statements in their memoranda (of which this opinion's footnote 2 reflects only one example) that belong in a motion for summary judgment rather than a motion to dismiss. But taking the Complaint at face value, its negligence claims are remarkable primarily for having totally ignored two controlling United States Supreme Court decisions⁴ handed down a few months before this action was filed at the end of August 1981.

In June 1981 Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) had put it beyond question that the determination of what process is due⁵ for a negligent deprivation of property like that alleged by Ragusa depends on whether "the tort remedies which the State of Illinois provides as a means of redress for property deprivations satisfies the requirements of procedural due process" (id. at 1914). Parratt also taught that under circumstances comparable to those alleged by Ragusa a post deprivation hearing satisfies the requirements of due process. All that means is the availability of a conventional tort remedy in the Illinois courts, an action plainly available to Ragusa. Though definitive in nationwide terms, Parratt scarcely represented new law. Bonner v. Coughlin, 517 F.2d 1311, 1320 (7th Cir. 1975), modified en banc 545 F.2d 565 (1976), cert. denied 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978).

Justice Powell's concurrence in Parratt might have been written for this case (101 S.Ct. at 1922 n.13):

The present case ... illustrates the extent to which constitutional law has been trivialized, and federal courts often have been converted into small-claims tribunals. There is little justification for making such a claim a federal case....

If Ragusa's negligence claim has substance he is free to assert it in the Illinois courts without having to overcome any jurisdictional hurdles. It is frankly difficult to understand why he felt compelled, in the face of Parratt and with a readily available remedy elsewhere, to add (as Justice Powell added) to "an overburdened federal system."

Accordingly defendants' motion to dismiss is granted as to the Complaint's claims of their negligence.⁶ This ruling extends as well to allegations that "others not presently known to Ragusa intentionally" took action that injured Ragusa, for such allegations would at worst charge defendants with negligence in having failed to prevent the possibility of such action.

Ragusa's Claim for Defendants' Intentional Misconduct

There remain for consideration the Complaint's allegations of intentional misconduct by the individual defendants. Such allegations do survive a motion to dismiss a Section 1983 lawsuit, under Kimbrough v. O'Neil, 545 F.2d 1059, 1061 (7th Cir. 1976). However Ragusa would then be left with only a piece — and the more difficult piece — of his possible claim. This Court will leave it to Ragusa to determine whether under the circumstances he wishes to dismiss this action without prejudice or to pursue the claim, as limited by this order, in this Court.

Conclusion

As indicated at the outset of this opinion, defendants' motion is granted in part and denied in part. At the December 31, 1981 status hearing at which this opinion will be announced to counsel, the Court will determine what proceedings should appropriately follow.

1 Of course the Department is not a legal entity, and this action is subject to dismissal as to it on that ground alone. If Ragusa were to replead by naming a legal entity, continuing to rely only on the naked allegation (Complaint ¶ 4) that the individual defendants "acted toward Plaintiff under color of the statutes, ordinances, customs and...