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 Court finds that there is no genuine issue of material fact
in this case with regard to Count I of the complaint.
The uncontested facts are as follows. The plaintiff, Lawrence
Collins, was a guest of the defendant Viceroy Hotel under an oral
rental agreement from late December, 1968 until December 29,
1970, when he was locked out of his room. During that time, the
agreed rental rate was $3.61 per day, payable on a weekly basis
and in advance. On December 11, 1970, the plaintiff paid rent for
a period up to and including December 21, 1970.
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.
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.
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
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, § 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, ...