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January 26, 1972


The opinion of the court was delivered by: Marovitz, District Judge.


This is a civil rights action brought by a prisoner at the Illinois State Penitentiary, Stateville Branch, against various prison officials arising out of Defendants' failure to mail a trial transcript to Plaintiff's attorney.

Plaintiff alleges that on August 31, 1970 he delivered the trial transcript in his case to Defendant Meyers, a clerk in the Record Office at Stateville to be mailed to his attorneys.

Plaintiff was subsequently informed by his counsel that the transcript never arrived. Plaintiff's repeated inquiries to prison officials as to the whereabouts of the transcript were allegedly met with indifference. On February 9, 1971, Defendant Meyers returned the transcript to Plaintiff but refused to inform him as to where the transcript had been in the interim and Plaintiff's request for an investigation was turned down.

As a result of these alleged acts Plaintiff contends that his rights under the First, Fourth, Sixth and Fourteenth Amendments have been violated; that his civil rights under 42 U.S.C. § 1983, have been violated; that he has lost a post conviction hearing and that his direct appeal was delayed and denied. He seeks injunctive relief and $10,000 in the actual and punitive damages. (Count I.)

In disposing of the issue of liability under Count I we must first determine the factual setting and then decide whether the acts involved are violations of the Civil Rights Act.

Defendants do not controvert the fact that the transcript was indeed delivered to them for forwarding to Plaintiff's counsel; that it was not forwarded as directed and that it did not again turn up until February of 1971. The dispute centers around the whereabouts of the transcript during that five-month period and how it came to be lost.

This Court is convinced that Defendants' version of the facts as substantiated by exhibits and other evidence is the true course of events that led to the disappearance of the record. Due to the large volume of mail handled by the prison record office, the transcript was inadvertently placed in an envelope along with some other papers addressed to Mrs. Rose Edmonds, the mother of another prisoner. Mrs. Edmonds, unaware that the misplaced documents were among the other papers correctly sent to her did not send them back until she returned her son's entire file. It was at this time that the error in regard to Plaintiff's transcript was discovered. Our factual finding, therefore, is that Defendants did not intend to deny or violate Plaintiff's constitutional right of access to the courts.

This factual conclusion, however, in view of various interpretations given the Civil Rights Act is not sufficient in itself to dispose of the issue in this case.

Assuming as we have that the documents were negligently handled, we must now decide whether mere negligence, such as the mailing of Plaintiff's transcript, is not actionable under the Civil Rights Act as Defendants argue or whether Plaintiff is correct in his position that under the Civil Rights Act the fact that the prison officials did not intend to deprive him of his unimpeded access to the courts is irrelevant since "improper motive" is not an element of a § 1983 suit.

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) determined that 42 U.S.C. § 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S. at 187, 81 S.Ct. at 484 and that specific intent to violate the rights protected by the Act is not necessary for a cause of action. Early cases took this to mean that a § 1983 cause of action was possible for all torts so long as the tortious act was done by individuals acting under color of state law. See Hardwick v. Hurley, 289 F.2d 529 (7th Cir. 1961). The later trend was to move away from this absolute position (see Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962).

A great deal of debate centers on the question of whether "improper motive" must accompany an invasion of constitutional rights to make the violation actionable under § 1983.

The Seventh Circuit Court of Appeals in Joseph v. Rowlen, 402 F.2d 367 (1968), relied on by Plaintiff, rejected the notion that ulterior motive is a requisite of a § 1983 cause:

    "Federal courts, including this one have expressed
  the policy view that sec. 1983 should not be
  construed to make cognizable in a federal court any
  and all false imprisonment causes of action against
  police officers where the

  unlawfulness of the arrest is a violation of federal
  constitutional requirements. The formulae suggested
  at times for distinguishing causes of action which
  are cognizable in federal court from those which ...

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