Opinion · Court of Appeals for the Seventh Circuit

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

Cleveland Kimbrough v. Dave O'Neil (O'neal), Etc., 545 F.2d 1059 (7th Cir. 1976)

Type
Opinion
Court
Court of Appeals for the Seventh Circuit
Jurisdiction
Federal
Date
1976-10-29
Topic
general

How later courts describe this case

  • finding that trial court abused discretion by declining to exercise pendent jurisdiction over state law conversion claim arising from same facts as § 1983 claim

Citator

Cleveland Kimbrough v. Dave O'Neil (O'neal), Etc. has been questioned or limited by later authorities: relies on overruled authority: 5 L. Ed. 2d 492 (overruled by Monell v. New York City Dept. of Social Servs.). Read them before relying on it. 42 later decisions cite it.

Authority status
caution
Cited by
42 opinions
KIMBROUGH v. O'NEIL,545 F.2d 1059(7th Cir. 1976)
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 January 26, 1976 En Banc.
Decided October 29, 1976.
Page 1060
William T. Huyck, Chicago, Ill., for plaintiff-appellant.

Robert H. Rice, State's Atty., Robert L. Craig, Asst. State's Atty., Belleville, Ill., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Illinois.
Before FAIRCHILD, Chief Judge, and SWYGERT, CUMMINGS, PELL, SPRECHER, TONE and BAUER, Circuit Judges.fn*
CUMMINGS, Circuit Judge.
[1] The facts are fully stated in the previous panel opinion.523 F.2d 1057. The facts pertinent to the rehearingen bancare 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's1deputies, took a $2500 diamond ring from him and issued an inventory 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 inventory envelope. On the transfer date, April 14, 1972, Johnson signed a note indicating failure to return the ring. The complaint states that twelve letters from plaintiff requesting Sheriff O'Neal's office to return the ring went unanswered. Kimbrough's complaint, fairly construed, goes on to allege that his "missing" ring had actually been intentionally confiscated by some member of the Sheriff's office. For different reasons, the panel inKimbroughheld that plaintiff's allegations were sufficient to state a cause of action under42 U.S.C. § 1983, so that the district court had improperly granted defendants' motion to dismiss the complaint. The petition for rehearingen bancwas granted so that the full Court could consider the various views on Section 1983 liability expressed by the panels here and inBonner v. Coughlin,517 F.2d 1311(7th Cir. 1975).

[2] InBonner,over Judge Swygert's dissent, this Court recently helden bancthat a prisoner may not recover damages under42 U.S.C. § 1983for loss of his property 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 property by a deputy sheriff is actionable under42 U.S.C. § 1983. By the use of the termPage 1061"deputy sheriff," we do not mean to imply that only an allegation that Johnson confiscated the ring would be actionable.2Under Section 1983, the identity of the confiscator would become relevant only if his access to the plaintiff's ring was not occasioned because of his employment by the State. InCarroll v.Sielaff,514 F.2d 415(7th Cir. 1975), we had previously held that the confiscation of prisoners' typewriter and currency was subject to redress under Section 1983. We continue to adhere to that holding which was the direct precedent in this Circuit for our initial decision inKimbrough.See523 F.2d at 1059, 1060 n. 2, 1067.

[3] Kimbrough has alleged that a State officer intentionally took his ring under color of state law and failed to return it upon demand. He has charged that this deliberate taking was in violation of the Due Process Clause. Because defendant Johnson assertedly acted within the sphere of his official responsibility with the malicious intention of causing a deprivation of Kimbrough's constitutional rights, plaintiff has adequately stated a claim under42 U.S.C. § 1983.Monroe v. Pape,365 U.S. 167,81 S.Ct. 473,5 L.Ed.2d 424;Lynch v. Household FinanceCorp.,405 U.S. 538,92 S.Ct. 1113,31 L.Ed.2d 424;Thomas v.Pate,516 F.2d 889,891n. 2 (7th Cir. 1975), certiorari denied,423 U.S. 877,96 S.Ct. 149,46 L.Ed.2d 110.3As inMonroeandBonner,it is immaterial that Kimbrough might have an adequate remedy in the Illinois courts.

[4] As shown inMonroe 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 Sheriff's office either intentionally or with reckless disregard4caused his property loss, the remedy afforded under Section 1983 may deter similar misconduct. Our conclusion that a taking with intent (or reckless disregard) of a claimant's property by a State agent violates the Due Process Clause of the Fourteenth Amendment and is actionable under Section 1983 is in harmony with the decisions in other Circuits.5Indeed defendants 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.

[5] Reversed and remanded.6
[6] SWYGERT, Circuit Judge (concurring).
[7] I concur in the reversal and remand in light of my dissent inBonner v. Coughlin,545 F.2d 565(7th Cir. 1976). The "taking" by the sheriff or his deputies of Kimbrough'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 example, a third person's theft of the ring from an exposed depository — a section 1983 action should be permitted.Page 1062

[8] 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 majority inBonneris 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 disregard caused his property loss, the remedy afforded under Section 1983 may deter similar misconduct. Our conclusion that a taking with intent (or reckless disregard) of a claimant's property by a State agent violates the Due Process Clause of the Fourteenth Amendment and is actionable under Section 1983 is in harmony with the decisions in other Circuits. (footnotes omitted).


[9] 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.

[10] 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 defendants 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.
  1. 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. ↩
  2. The proper spelling of the surname of the Sheriff of St. Clair County is "O'Neal." However, when this action was filed, the plaintiff mistakenly spelled it as "O'Neil." ↩
  3. Of course, Kimbrough would have to amend his complaint if he wishes to prove that someone 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). ↩
  4. See alsoGutierrez 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. ↩
  5. Under ouren bancopinion inBonner,culpability at the reckless disregard level is sufficient to maintain a Section 1983 action. While Kimbrough's complaint does not allege a reckless disregard of his constitutional rights, that may be shown by evidence at trial, in which case he could amend to conform to the proof. ↩
  6. Russell v. Bodner,489 F.2d 280(3d Cir. 1973);Carterv. Estelle,519 F.2d 1136(5th Cir. 1975);Cruz v. Cardwell,486 F.2d 550(8th Cir. 1973); andHansen v. May,502 F.2d 728(9th Cir. 1974). ↩
  7. 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 relief under42 U.S.C. § 1983. See523 F.2d at 1059. ↩