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COLLINS v. VICEROY HOTEL CORPORATION

February 2, 1972

LAWRENCE COLLINS, PLAINTIFF,
v.
THE VICEROY HOTEL CORPORATION, AN ILLINOIS CORPORATION, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

This is an action for declaratory judgment, injunctive relief and damages for the alleged violation of plaintiff's civil rights brought under 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments, with jurisdiction allegedly founded on 28 U.S.C. § 1331, 1343(3), 2201 and 2202.

The case is now before the Court on the plaintiff's motion for judgment on the pleadings as to Count I, or, in the alternative, for partial summary judgment declaring the Illinois Innkeepers' Lien Laws, Ill.Rev.Stat., 1969, Ch. 71, § 2 and Ch. 82, § 57, unconstitutional and permanently enjoining their enforcement by the defendants.

On the morning of December 29, 1970, the plaintiff left his room, allegedly to keep an appointment for a physical examination at the Cook County Department of Public Aid clinic. When he returned later in the day, the plaintiff found that the lock on his door had been "plugged" in such a way as to not admit his door key. Upon inquiry he was told by a hotel clerk that the "plug" would not be removed. At this time, his room still contained his personal property.*fn1

In their answer, the defendants admit that the plaintiff was not allowed to re-enter his room,*fn2 and that possession of his personal property was held under and by virtue of the provisions of the Illinois Innkeepers' Lien Laws, Illinois Revised Statutes, 1969, Ch. 71, § 2 and Ch. 82, § 57. On January 15, 1971, the plaintiff brought this action and moved for a temporary restraining order or preliminary injunction, which motion was heard and denied. On appeal, the Court of Appeals for the Seventh Circuit, on February 12, 1971, enjoined the defendants from disposing of the plaintiff's property and ordered that the plaintiff, upon posting of bond not in excess of nine days rental, be allowed to re-enter his room and remove his property. By agreement of the parties and without the posting of bond, the plaintiff's property was returned to him on March 4, 1971.

MOOTNESS

There is some suggestion from paragraph 20 of their answer that the defendants consider the case mooted by the return of the property to the plaintiff. In Powell v. McCormack, 395 U.S. 486, 496-497, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969), however, the Supreme Court stated that:

  Simply stated, a case is moot when the issues
  presented are no longer "live" or the parties lack
  legally cognizable interest in the outcome. See E.
  Borchard, Declaratory Judgments 35-37 (2d ed. 1941).
  Where one of the several issues presented becomes
  moot, the remaining live issues supply the
  constitutional requirement of a case or controversy.
  See United Public Workers v. Mitchell, 330 U.S. 75,
  86-94 [67 S.Ct. 556, 562, 566, 91 L.Ed. 754] (1947):
  6A J. Moore, Federal Practice ¶ 57.13 (2d ed. 1966).

In the instant case, the plaintiff in Count II of his complaint is seeking damages for deprivation of the property for the period it was held and this is a "remaining live issue." Furthermore, as the court stated in Klim v. Jones, 315 F. Supp. 109, 117 (N.D.Cal. 1970), a case on all fours with the instant case:

  Since any such recovery [damages] depends in part
  upon a determination by this court that the
  defendants acted pursuant to an unconstitutional
  statute, this action is not rendered moot by the
  return of the plaintiff's belongings.

Since plaintiff's claim for damages in Count II, as in Klim, is dependent on the resolution of his claim in Count I, the constitutional challenge to the Illinois Innkeepers' Lien Laws is a live issue which satisfied the constitutional requirement of a case or controversy. Count I has not, therefore, been rendered moot by the return of the plaintiff's property.

JURISDICTION

One of the basis for this action is alleged to be the Civil Rights Act of 1871, 42 U.S.C. § 1983, with jurisdiction founded on 28 U.S.C. § 1343(3).*fn3 Title 42, United States Code, Section 1983 provides in pertinent part that:

  Every person who, under color of any statute, * * *,
  of any State * * *, subjects, * * *, any citizen of
  the United States * * * to the deprivation of any
  rights, privileges or immunities secured by the
  Constitution or laws, shall be liable to the party
  injured in an action at law, suit in equity, or other
  proper proceeding for redress.

The question in this case is whether the defendants deprived the plaintiff of his right to due process "under color of" state law. As stated above, the defendants have admitted in paragraphs 11, 13, 16, and 17 of their answer that they invoked their rights under the Illinois Innkeepers' Lien Laws to seize and hold the plaintiff's property.

In the much cited case of United States v. Classic, 313 U.S. 299, 325-326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941), the Supreme Court stated that:

  Misuse of power, possessed by virtue of state law and
  made possible only because the wrongdoer is clothed
  with the authority of state law, is action taken
  "under color of" state law.

Although Classic dealt with the action of state officials, it has been widely interpreted to cover acts of private individuals acting in concert with state officials, Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1967), and to cover acts of private individuals exercising authority granted by state law. Hall v. Garson, 430 F.2d 430, 438-440 (5th Cir. 1970); McKinley v. Investors Realty & Management Corp., (N.D.Ill. March 26, 1971, 70 C 3224 1/2); Santiago v. McElroy, 319 F. Supp. 284

The above cited cases find support in the rationale espoused by the Supreme Court in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), a case in which all of the parties were private individuals. Reitman involved a husband and wife who sued under certain California civil rights statutes alleging that the defendants had refused to rent them an apartment solely on account of their race. The trial court granted summary judgment to the defendants on the ground that the civil right statutes had been rendered void by the adoption of Art. I, ยง 26 of the California Constitution which authorized private discrimination. The California Supreme Court reversed, holding that since prohibited state involvement could be found where the State had merely taken affirmative action to make private discriminations legally possible, ...


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