United States District Court, Northern District of Illinois, E.D
January 26, 1972
EZELL JENKINS, PLAINTIFF,
EDWIN J. MEYERS ET AL., DEFENDANTS.
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.
(In Count II of Plaintiff's Second Amended Complaint he alleges
that his transcript was seized from his person while he was on
his way to his work assignment pursuant to a prison regulation
forbidding possession of legal papers at job assignments and that
as a result
of his resistance he was punished with one day in isolation and
the loss of the privilege of attending two movies. Plaintiff
alleging violations of his First, Fourth, Sixth and Fourteenth
Amendment rights seeks an additional $5,000 in actual and
punitive damages on this Count and injunctive relief. Pursuant to
an agreement made at the time of the submission of the pre-trial
order, the issue of liability under Count I of the Second Amended
Complaint has been separated from the issue of relief under Count
I and from all of the issues under Count II, for disposition on
the basis of the facts stipulated to in the pre-trial order.)
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 are
not have usually required for a federal cause of
action facts indicating flagrancy or an improper
"One serious difficulty with such formulae is that
there is nothing in the language of sec. 1983, or the
fourth and fourteenth amendments as presently
construed, on which to base such tests.
"Although the Supreme Court has found that certain
defenses to a sec. 1983 cause of action exist,
apparently by implication, they are defenses typical
of tort causes of action. Thus common law defenses of
legislative immunity and judicial immunity exist
under sec. 1983. A police officer is not liable if he
acted in good faith and with probable cause in
making an arrest under a statute he believed to be
valid even though the statute be later held invalid.
"In dealing with the questions whether a person is
liable under sec. 1983 only if he acted with a
specific intent to deprive a person of a federal
right, and in deciding that such intent was not
required, the Supreme Court said section 1983 `should
be read against the background of tort liability that
makes a man responsible for the natural consequences
of his actions.'"
In Rowlen, a false arrest case, where the police officer
claimed that he was not improperly motivated, the court held that
a directed verdict in defendant's favor was in error given the
fact that good faith under the circumstances of that case was not
an adequate defense. The court distinguished Pierson v. Ray,
386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967):
"Although the Supreme Court refers in Pierson to
`the defense of good faith and probable cause',
available to a police officer under sec. 1983, there
is no suggestion that a police officer is entitled to
a defense of good faith when he makes an arrest
without a warrant and without probable cause.
"We conclude that under 42 U.S.C. § 1983, where
a police officer makes an arrest which is unlawful
under the federal constitution because made without a
warrant and without probable cause to believe that
the person arrested had committed or was committing
an offense, sec. 1983 imposes on the officer a
liability which is recoverable in federal court.
Additional circumstances coloring the officer's
action as flagrant or malevolent are not required."
In Whirl v. Kern, 407 F.2d 781
(5th Cir. 1969) also heavily
relied on by Plaintiff, the court cites the Seventh Circuit trend
as reflected in Rowlen, supra, to disregard motive as an
element of a § 1983 offense. Kern, was a false imprisonment
rather than a false arrest case, where the Plaintiff was detained
in prison for nine months after charges against him had been
dismissed because the sheriff in whose custody he was, was
unaware of the dismissal. The sheriff's defense to plaintiff's §
1983 suit was that the Civil Rights Act applied only to
reprehensible or improperly motivated conduct. The court held
good faith not to be an adequate defense:
"Decisions of the Supreme Court have repeatedly
noted that a complaint under the Civil Rights Act
should not be dismissed for failure to state `a
specific intent to deprive a person of a federal
right.' Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492; Pierson v. Ray, 1967,
386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, 296. The Civil
Rights Act, we are told, should be read `against the
background of tort liability that makes a man
responsible for the natural consequences of his
actions.' Monroe v. Pape, supra. We do not find in
this language or in the language of the Act itself
any intimation that an invasion of
constitutional rights unaccompanied by an improper
motive lies beyond the reach of the Statute.
"We are supported in this view by the recent
decision of the Seventh Circuit in Joseph v. Rowlen,
7 Cir. 1968, 402 F.2d 367. . . .
"Since Monroe v. Pape, supra, this Court has
consistently avoided attaching any requirement of
ulterior purpose or improper motive to the statement
of a cause of action under 42 U.S.C.A. § 1983.
(Citations omitted). Of course, when an essential
element of the wrong itself under well established
principles of tort law includes the demonstration of
an improper motive as in malicious prosecution,
Nesmith v. Alford, supra, [5 Cir.] 318 F.2d at 110,
121, 128 n. 34, then such principle becomes a part of
sec. 1983. But the origin of such a requirement is in
the common law of torts, not in the Civil Rights Act.
In cases where tort law imposes no such burden upon
the plaintiff, we are not persuaded that the burden
should be judicially imposed under sec. 1983. We
think it inconsistent to say in one and the same
breath that a man is `responsible for the natural
consequences of his actions,' Monroe v. Pape,
supra, 365 U.S. at 187, 81 S.Ct. at 484, 5 L.Ed.2d
at 505, and that he is responsible only if his
actions are improperly motivated.
"This treatment of the improper motive requirement
appears in keeping with the Supreme Court's position
on the availability of defenses under the Civil
Rights act. As we read Pierson v. Ray, good faith and
probable cause are defenses to an arrest not because
of any language in § 1983, but because § 1983 must be
read in a manner consistent with the background of
"We see no reason why the improper motive
requirement should not also be dependent upon the
common law of torts. Nothing in the Civil Rights Act
or in decisions of the Supreme Court compels
otherwise. In fact, the unmistakable trend of
judicial decisions has been away from the
encrustation of the Civil Rights Act with judicially
created limitations. Whereas the Act was once rigidly
limited to instances of systematic discrimination or
physical brutality, in recent years courts have shown
themselves increasingly willing to entertain suits
under § 1983 where even improper motive is hard to
find. Huey v. Barloga, N.D.Ill. 1967, 277 F. Supp. 864;
(citations omitted). In surveying this
historical progression, we are, like the Seventh
Circuit, impressed with the lack of justification for
the improper motive requirement. We find no more
basis for it in the language of the Act or in Supreme
Court decisions than for the now rejected requirement
of systematic discrimination. Cf. Cohen v. Norris, 9
Cir. 1962, 300 F.2d 24, 29-30.
"The Supreme Court's use of the term `neglect' and
the expansive phrase `or otherwise' appears to us
directly contrary to the `improper motive'
requirement. Such language suggests that a federal
forum is no less desirable for the inadvertent than
for the malicious violation of constitutionally
protected rights. Cf. Huey v. Barloga, N.D.Ill. 1967,
277 F. Supp. 864."
In distinguishing the good faith defense of Pierson v. Ray,
supra, the court differentiated between false arrest, the
situation in Pierson, and false imprisonment, the circumstances
"Pierson v. Ray and Monroe v. Pape were on their
facts, false arrest cases and not false imprisonment
cases. While it is certainly true that false arrest
cases are often denominated actions for false
imprisonment, i.e., Pierson and Monroe, false
imprisonment deriving from an arrest and false
imprisonment where no arrest has occurred are in
substance quite different.
"There can be no quarrel with the fact that `good
faith' in the circumstances
of an arrest is a necessary and historically
validated defense. As said by the Supreme Court in
Pierson, `A policeman's lot is not so unhappy that
he must choose between being charged with dereliction
of duty if he does not arrest when he has probable
cause, and being mulcted in damages if he does.' 386
U.S. at 555, 87 S.Ct. at 1218, 18 L.Ed.2d at 295.
"The reasons for this broad protection are clear.
An arrest is often a stressful and unstable situation
calling for discretion, speed, and on-the-spot
evaluation. . . ."
The rule that we derive from all of these cases — a rule
certainly adhered to by this Circuit — is that improper motive is
not an element of a § 1983 action and that the Civil Rights Act
must be read in a manner consistent with the background of common
law tort liability which allows only for recognized tort
defenses. Plaintiff would therefore have us find Defendants
liable for its inadvertent act of incorrectly mailing the
transcript although Defendants were merely negligent, on the
theory that negligence is not a proper defense to a tort and thus
cannot be a defense to a § 1983 action.
The short answer to Plaintiff's contentions in this case would
be that the fundamental tort element of injury is here absent.
Thus, even if all the other ingredients of a tort case are
present and cognizable under the Statute including negligence (a
point which we do not concede) Plaintiff could not succeed given
the fact that he has not been injured by Defendants' acts. Under
the Illinois Post Conviction Hearing Act (Ill.Rev.Stat. Ch. 38 §
122-1) a proceeding may be commenced at any time within twenty
years of the final judgment and Plaintiff can therefore still
proceed with his attempt to secure post-conviction relief.
Furthermore, the filing of the transcript is not necessary to set
the appeal procedure in motion within the requisite time limit
and Plaintiff's attorney could have taken proper action to inform
the Supreme Court of the difficulty in locating the transcript.
This lack of injury to Plaintiff would be entirely sufficient
grounds for this Court to find for Defendants on the issue of
liability under Count I.
However, since Plaintiff does present the important issue as to
whether mere negligence of the sort involved in this case is
cognizable under § 1983, we will rule on that portion of the
We hold that mere negligence involving an act void of not only
specific intent but intent as such, is not grounds for a § 1983
To better understand where on the Civil Rights spectrum in
terms of intent our case lies, we must first chart out the
various factual permutations possible under the Act:
1) The most readily recognizable violation of a
constitutionally secured right occurs where the act is wilfully
done under color of law with the specific intent to deprive a
person of a Federal right. The act is consciously motivated with
the intended result of violating a constitutional right. This
violation is cognizable not only under 42 U.S.C. § 1983 but also
under the more limited 18 U.S.C. § 242 which requires that the
act be "wilfully" done. See Screws v. United States, 325 U.S. 91,
65 S.Ct. 1031, 89 L.Ed. 1495 (1945), and United States v.
Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) for
the history of 18 U.S.C. § 242;
2) A less easily recognizable though no less clear-cut
violation of 42 U.S.C. § 1983 occurs where there is no "specific
intent" to violate a constitutional right but where the act
itself and its result were intended under color of law sans
improper motive. Though ulterior motive is absent, the acts will
"be read against the background of tort liability that makes a
man responsible for the natural consequences of his actions."
Monroe v. Pape, 365 U.S. 167 at 187, 81 S.Ct. 473 at 484, 5
L.Ed.2d 492 (1961). In such a case the elements of the offense
are a violated constitutional right, a conscious
act, an intended result and a result that should have been
contemplated under the common law tort doctrine of
foreseeability. Good faith or proper motive is no defense. See
also Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968);
3) The third category constitutes cases where the act is
conscious, the result is intended, improper motive is absent and
constitutional right is violated but the lack of an improper
motive is a defense. The defense of good faith would be
adequate when in applying common law tort background the
defendant could not be held responsible for the natural
consequences of his actions. Good faith thus is a proper defense
in a false arrest case where the arresting officer followed
proper procedure such as warrant and probable cause and it is a
defense only because it is a viable and valid one under tort law.
See Pierson v. Ray, 386 U.S. 547 at 555, 87 S.Ct. 1213, 18
L.Ed.2d 288 (1967);
4) The fourth category consists of cases where there is a
deprivation of a constitutional right but the act bringing about
that violation was an unconscious one, a pure mistake, and the
factual as well as the legal result were unintended. Thus, not
only was there an absence of both improper motive and specific
intent — there was no motive and no intent whatsoever since the
defendant was not cognizant that the act was taking place no less
the legal implications of that act;
5) The fifth category includes cases where there is no
violation of a constitutional right as such, there was no
improper motive and the act and the result were not intended. The
injury in such a case is the result of a "pure tort" rather than
a constitutional tort, such as personal injury and such an action
cannot be maintained under 42 U.S.C. § 1983. See Kent v. Prasse,
D.C., 265 F. Supp. 673 (1967) affirmed 385 F.2d 406 (3rd Cir.
1967), where the court held that the unintentional common law
tort resulting from the alleged negligent maintenance of a
machine in the prison shop was not cognizable under
42 U.S.C. § 1983. See also United States ex rel. Gittlemacker v. Penna.,
281 F. Supp. 175 (E.D.Pa. 1968).
We maintain that 42 U.S.C. § 1983 was not meant to apply to
unintentional torts where both the act is unconscious and the
result unintended not only where the tort is a "pure" common law
tort as in Kent v. Prasse, supra, but also where the result is
a constitutional tort. The question of whether improper motive
need be present applies only to those cases where some form of
conscious intent was present.
Our case, falling in the fourth category, would therefore not
be actionable under 42 U.S.C. § 1983.
The cases interpreting lack of specific intent cover the full
spectrum of degrees of intent of the first three categories
mentioned yet no cited case has found a party liable where the
very act itself was unintended. The common thread running
through all of the "improper motive", "good faith" situations
from the flagrant violation of Monroe v. Pape, supra, to the
good faith defense of Pierson v. Ray, supra, and the
irrelevance of good faith in Joseph v. Rowlen and Whirl v. Kern,
supra, is the fact that the result of the act was intended
and that a certain threshold cognizance of the act being
performed, albeit an innocent one, was present. Thus, in the act
of falsely arresting an individual the result that the individual
be arrested was undeniably intended though not falsely such as in
Rowlen and Pierson; in the act of falsely imprisoning the
result that the prisoner remain imprisoned was intended though
not falsely such as in Kern. That a certain result be
intended and that the act mounted to accomplish that result
must be a conscious one is therefore a basic requisite for a §
1983 suit. Simply stated, this means that although specific
intent need not be present some intent must be involved.
Our case falls within the fourth aforementioned category since
the Defendants did not intend to mail the transcript to the
mother of another prisoner, were
not conscious of doing the act and did not intend the result. An
instance, borrowing some of the facts of our case, that might
more properly have been analogous to the false arrest cases, (as
unlikely as such a situation coming about might be) would result
if Defendants had intentionally mailed Plaintiff's transcript
to a wrong address thinking that it was perfectly legal to do so
and that such an act was not a denial of a prisoner's access to
the courts. In such a case the good faith protestations of the
prison officials would be no defense to a § 1983 action given the
fact that the result was intended — the mailing to an incorrect
address — and the act was conscious.
We might also add that Whirl v. Kern, supra, where a prisoner
sued a sheriff for keeping him in prison for nine months after
the dismissal of charges against him, might have been proper
precedent in this case had the prisoner sued the District Clerk
for failing to inform the sheriff that the charges had been
dismissed. Had that been the nature of the suit and had the court
held that the Clerk's inadvertence in not properly informing
the sheriff of the dismissal was cognizable under § 1983, though
not dispositive of the issue, might have made us more prone to
adopt that case as precedent. As the case stands, however, the
sheriff's act in Kern of keeping the plaintiff in prison was
both conscious and intended as opposed to the totally unconscious
act in our case.
We, therefore, reach the conclusion that the pronouncement of
Monroe v. Pape that the Civil Rights Act 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, 5 L.Ed.2d 492 was never meant to superimpose the
entire tort common law over the Act. Rather it was meant to apply
only to conscious intended acts even under circumstances where
there is a total innocence as to the constitutionally violative
nature of the act and result except where that innocence would be
a common law tort defense such as good faith in false arrest
cases. Where, however, the act is one totally devoid of any
intent or consciousness and is pure accident there is no action
under § 1983. The very language of Monroe v. Pape as to the
responsibility of a man for the natural consequences of his
actions implies some minimum degree of knowledge that the action
is taking place.
Plaintiff's attempt to apply the tort law en masse to § 1983
therefore cannot meet with success. To do so would convert every
minor mistake, especially in the milieu of the prison, into a
violation of § 1983. To hold prison officials to such a high
standard of strict liability would impose such an impossible
burden as to render prisons totally inoperable.
As to the issue of liability under Count I we therefore find
that Defendants' error in the mailing of the transcript is not an
action cognizable under 42 U.S.C. § 1983.
© 1992-2003 VersusLaw Inc.