UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: June 2, 1975.
ALONZO BONNER, PLAINTIFF-APPELLANT,
JOSEPH COUGHLIN, JOHN J. TWOMEY, W. RUMLEY III, AND J. ROBINSON, DEFENDANTS-APPELLEES
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 1468 Abraham L. Marovitz, Judge.
Fairchild, Chief Judge, Stevens and Sprecher, Circuit Judges. Fairchild, Chief Judge, concurring.
STEVENS, Circuit Judge.
Appellant contends that his constitutionally protected interests in privacy and property were violated by a "shakedown" search of his prison cell which resulted in the loss of his trial transcript. He asserts a federal right to recover damages on three different theories: (1) that the transcript was taken during the conduct of a search which violated the Fourth Amendment; (2) that the taking of the transcript was a deprivation of property prohibited by the Due Process Clause of the Fourteenth Amendment; and (3) that the defendants*fn1 interfered with his access to the courts protected by the Sixth and Fourteenth Amendments.*fn2 Since we conclude that his claims are not entirely without merit, we reverse the summary judgment entered by the district court and remand for trial.
The verified complaint and the affidavits submitted by appellant in opposition to defendants' motion for summary judgment indicate the following. When appellant returned to his cell on November 28, 1972, after completing a work assignment as a commissary clerk and runner, he found the cell door ajar and his personal belongings strewn on the floor. The transcript of his trial was missing.*fn3 Another inmate, who witnessed the search, states that he saw two officers leave the cell carrying a large envelope.*fn4 Two other inmates described the extreme disarray.*fn5
Defendants admit the shakedown of Bonner's cell by two guards, Rumley and Robinson, pursuant to a Department of Corrections Regulation authorizing such searches.*fn6 The record does not, however, explain who authorized the search or why it was made; the text of the regulation implies that such searches are made periodically without any advance notice for security reasons.
Defendant Rumley filed an affidavit denying that he took Bonner's transcript or that he threw Bonner's personal property on the floor.*fn7 Robinson, who is no longer employed at the institution, did not file any affidavit.*fn8 Thus, the possibility that Robinson took Bonner's transcript is not contradicted in any affidavit filed on behalf of defendants. Nor have defendants denied the allegation that the guards left the cell door open, thus creating the possibility that another person may have taken the transcript.
At the time of the search, Bonner's appeal from his conviction was pending in the Illinois Appellate Court. He was then represented by counsel who had possession of both a copy of the trial transcript and the common law record. The murder conviction was affirmed on May 29, 1973. 12 Ill. App. 3d 245, 297 N.E.2d 795 (1973) (abstract opinion). This action was commenced on June 7, 1973; some months later, on December 5, 1973, after counsel had been appointed to represent appellant, he was given a substitute copy of his trial transcript.
On these facts the district court held that Bonner had no right to relief against these defendants. He held that Bonner had suffered no compensable injury and, alternatively, that even if the defendant guards were "overzealous," their reliance on a valid prison regulation established a good faith defense.
We cannot accept the district court's rationale. The prison regulation, by its terms, would not justify the deliberate taking of an inmate's personal property,*fn9 and, therefore, without a resolution of the disputed issues of fact, a good faith defense is not necessarily available either to Robinson, who has not denied the taking, or to Rumley, whose version of the event is contradicted in material respects by other affiants.*fn10 Moreover, the possibility that Bonner's status as a litigant was adversely affected is not entirely foreclosed by the record. See n. 29, infra. And, in all events, we cannot say that the deliberate taking of an inmate's possessions, which he may value disproportionately to their price on the open market, could not under any circumstances give rise to monetary recovery or an injunction against repetition of such conduct.*fn11 We therefore must address the merits of his underlying claims.
Appellant argues that the regulation which authorized the search of his cell is unconstitutional on its face because it requires neither notice, probable cause, nor a warrant before a shakedown is conducted, and also because it does not effectively prevent the reading of an inmate's private papers. We reject this attack.
The amended complaint does not allege that the guards examined any confidential documents belonging to Bonner or, indeed, that he had any such papers in his cell. Quite clearly, Bonner has no standing to attack the regulation simply because it may be improperly applied to someone else. United States v. Ramsey, 503 F.2d 524, 526-527 (7th Cir. 1974). It is equally clear that the Constitution does not foreclose every invasion of a prisoner's privacy that does not satisfy the warrant procedure described in the second clause of the Fourth Amendment.*fn12 Compare United States v. Biswell, 406 U.S. 311, 316, 32 L. Ed. 2d 87, 92 S. Ct. 1593. We therefore limit our analysis to the specific search and seizure conducted on November 28, 1972.
The threshold question is whether the Fourth Amendment provides any protection at all to a person incarcerated as a result of conviction of a serious crime. It might be argued that a prisoner can have no reasonable expectation of privacy with respect to his cell and therefore that the Fourth Amendment is completely inapplicable. See United States v. Hitchcock, 467 F.2d 1107, 1108 (9th Cir. 1972), cert. denied, 410 U.S. 916, 35 L. Ed. 2d 279, 93 S. Ct. 973. Contra, United States v. Savage, 482 F.2d 1371, 1373 (9th Cir. 1973), cert. denied, 415 U.S. 932, 39 L. Ed. 2d 491, 94 S. Ct. 1446. Or, alternatively, we might take judicial notice of the need for constant surveillance and control in a prison society and presume that any established practice designed to promote the discipline of the institution will satisfy the Fourth Amendment's requirement of reasonableness. See Stroud v. United States, 251 U.S. 15, 21-22, 64 L. Ed. 103, 40 S. Ct. 50; see also United States v. Palmateer, 469 F.2d 273, 274 (9th Cir. 1972); cf. Daughtery v. Harris, 476 F.2d 292, 294-295 (10th Cir. 1973); Denson v. United States, 424 F.2d 329, 331 (10th Cir. 1970). We are persuaded, however, that the possible application of some measure of Fourth Amendment protection within a prison context may not be summarily rejected.
The Supreme Court has recently reminded us that there "is no iron curtain drawn between the Constitution and the prisons of this country." In Wolff v. McDonnell, speaking for a unanimous Court, Mr. Justice White said:
Petitioners assert that the procedure for disciplining prison inmates for serious misconduct is a matter of policy raising no constitutional issue. If the position implies that prisoners in state institutions are wholly without the protections of the Constitution and the Due Process Clause, it is plainly untenable. Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a "retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948). But though his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country. Prisoners have been held to enjoy substantial religious freedom under the First and Fourteenth Amendments. Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972); Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964). They retain right of access to the courts. Younger v. Gilmore, 404 U.S. 15, 30 L. Ed. 2d 142, 92 S. Ct. 250 (1971), aff'g Gilmore v. Lynch, 319 F. Supp. 105 (ND Cal. 1970); Johnson v. Avery, [393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969)]; Ex parte Hull, 312 U.S. 546, 85 L. Ed. 1034, 61 S. Ct. 640 (1941). Prisoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race. Lee v. Washington, 390 U.S. 333, 19 L. Ed. 2d 1212, 88 S. Ct. 994 (1968). Prisoners may also claim the protections of the Due Process Clause. They may not be deprived of life, liberty, or property without due process of law. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971); Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945).
418 U.S. 539, 555-556, 94 S. Ct. 2963, 41 L. Ed. 2d 935.
This conceptual development had been foreshadowed by the Court's analysis in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593. The rationale in Morrissey had convinced us that inasmuch as physical confinement is merely one species of legal custody,
liberty protected by the due process clause may -- indeed must to some extent -- coexist with legal custody pursuant to conviction. The deprivation of liberty following an adjudication of guilt is partial, not total. A residuum of constitutionally protected rights remains.
As we noted in Morales v. Schmidt, [489 F.2d 1335, 1338 (7th Cir. Wis. 1973)], the view once held that an inmate is a mere slave is now totally rejected. The restraints and the punishment which a criminal conviction entails do not place the citizen beyond the ethical tradition that accords respect to the dignity and intrinsic worth of every individual.
United States ex rel. Miller v. Twomey, 479 F.2d 701, 712 (7th Cir. 1973) (footnotes omitted).
Respect for the dignity of the individual compels a comparable conclusion with respect to his interest in privacy. Unquestionably, entry into a controlled environment entails a dramatic loss of privacy. Moreover, the justifiable reasons for invading an inmate's privacy are both obvious and easily established. We are persuaded, however, that the surrender of privacy is not total and that some residuum meriting the protection of the Fourth Amendment survives the transfer into custody.
This conclusion finds some support, not only in the Court's recognition of other constitutional protections, but also in the care with which the Court has avoided a total rejection of the applicability of the Fourth Amendment to a prisoner's interest in privacy. In the Stroud case, for example, the Court concluded that there was no unreasonable search and seizure in violation of the prisoner's constitutional rights since the delivery of his mail to the warden was in accord with a regular practice " reasonably designed to promote the discipline of the institution." 251 U.S. at 21-22 (emphasis added). It is true, as defendants point out, that in Lanza v. New York the Court noted that
it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.
370 U.S. 139, 143, 82 S. Ct. 1218, 8 L. Ed. 2d 384 (footnote omitted).*fn13 But it is equally true that the case was decided on a different ground*fn14 and three members of the Court objected to the unnecessary comment on the constitutional problem.*fn15
It is also true that the Tenth Circuit has upheld serious intrusions on a prisoner's privacy in the face of a Fourth Amendment attack. See, e.g., Daughtery v. Harris, 476 F.2d 292, 294-295 (1973). But that court did not deny the relevance of the Fourth Amendment; quite the contrary, it assumed that "clear abuse or caprice" or "a showing of wanton conduct" would override the institutional interest, and actually held only that on the facts before it "the rectal searches in question were, and are, a necessary and reasonable concomitance of appellants' imprisonment." Id. at 295. Thus, although the holding was not stated in these words, the court decided that there was no violation of the litigants' right "to be secure in their persons, houses, papers, and effects' against unreasonable searches and seizures." (Emphasis added.)
We hold that a prisoner enjoys the protection of the Fourth Amendment against unreasonable searches, at least to some minimal extent. We need not decide in this case, however, whether the mere existence of a prison regulation authorizing random shakedowns would be sufficient to overcome a prisoner's Fourth Amendment attack, or whether some additional data describing the routine, its necessity, and the conformity of the particular search to the routine might be needed to satisfy the appropriate test of reasonableness. For in this case Bonner has alleged that the search was impermissible only insofar as it was conducted without a warrant, probable cause, or his consent. Amended Complaint paragraph 8. We are certain that, whatever the level of the prisoner's Fourth Amendment protection, it does not rise to that possessed by the unincarcerated members of society.*fn16
Bonner has, however, stated a Fourth Amendment claim with respect to the seizure of his state court transcript. As we noted at slip op. at p. 7, supra, he is entitled to be compensated for its loss regardless of its limited and uncertain monetary value. Assuming, as we must on review of a summary judgment, that Bonner is able to prove the taking of his property by one of the prison guards, the defendants would then have the burden of establishing the "reasonableness" of the seizure. For surely the term "papers and effects" encompasses the transcript of Bonner's criminal trial. Appellant has, therefore, alleged a Fourth Amendment violation which must be tried.*fn17
In his amended complaint, Bonner alleged in the alternative that defendants Rumley and Robinson "made it possible, by leaving the door of Plaintiff's cell open, for others without authority to remove Plaintiff's trial transcript from the cell."*fn18 Although the pleading does not allege that the guards were negligent in failing to close the cell door after completing their search, appellate counsel contends that this alternative claim is sufficient on a negligence theory. In briefs submitted after argument, the parties have argued the question whether mere negligence may support a recovery under § 1983.
We do not think the broad, and somewhat abstract, question whether negligence by the defendant may ever be sufficient to justify relief in a § 1983 case need be decided on this appeal. We may assume, for example, that prolonged detention in prison as the result of simple negligence on the part of the jailer would establish a prima facie case of deprivation of liberty protected by the Fourteenth Amendment,*fn19 or, conversely, that negligent failure to prevent one inmate from harming another would not constitute cruel and unusual punishment prohibited by the Eighth Amendment.*fn20 The first question to be asked is not what kind of conduct will breach the defendants' duty under § 1983, but rather, precisely what is that duty?*fn21
The statute protects the plaintiff from "the deprivation of any rights, privileges or immunities secured by the Constitution . . . ." The constitutional right invoked by plaintiff's alternative argument, as we understand it, is the Fourteenth Amendment right not to be deprived of property without due process of law. Bonner's transcript is certainly "property" within the meaning of the Fourteenth Amendment; moreover, if we assume the truth of his alternative allegation, he was deprived of that property as a consequence of the defendants' negligence. Since it is undisputed that the guards acted "under color of" a state regulation, it would seem to follow that these elements of the constitutional violation have been alleged. Prior to Lynch v. Household Finance Corp., 405 U.S. 538, 542-552, 31 L. Ed. 2d 424, 92 S. Ct. 1113, the claim would have been defeated by the distinction between "personal" rights and "property" rights. See Hague v. CIO, 307 U.S. 496, 531, 83 L. Ed. 1423, 59 S. Ct. 954. Alternatively, prior to Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031, the claim might have failed on the theory that unauthorized acts of prison guards should not be treated as acts "under color of" state law. See Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473, Mr. Justice Harlan concurring at 192. Now, however, it is clear that the actions of the guards constituted a form of state action sufficient to bring the protection of the Fourteenth Amendment into play.
What is less clear is whether it can be said that the deprivation was "without due process of law." The Lynch case involved a challenge to Connecticut's pre-judicial garnishment procedure. There was no conduct by any Connecticut official that was not expressly authorized by the state through its garnishment statutes. The temporary impairment of the plaintiff's access to her bank account resulted in an injury sufficiently serious to justify an immediate determination of the constitutionality of the state procedure.*fn22
It seems to us that there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers. In the former situation the facts satisfy the most literal reading of the Fourteenth Amendment's prohibition against "State" deprivations of property; in the latter situation, however, even though there is action "under color of" state law sufficient to bring the amendment into play, the state action is not necessarily complete. For in a case such as this the law of Illinois provides, in substance, that the plaintiff is entitled to be made whole for any loss of property occasioned by the unauthorized conduct of the prison guards.*fn23 We may reasonably conclude, therefore, that the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.*fn24
This is not to suggest that the plaintiff in a § 1983 action must exhaust his state remedies before seeking federal relief. Rather, it seems to us that the availability of an adequate state remedy for a simple property damage claim avoids any constitutional violation.*fn25 This result is entirely consistent with the basic statutory purposes as explained in Monroe v. Pape.*fn26 There is simply no need to provide a federal tort remedy for property damage caused by the negligence of state agents if a state remedy is not only adequate in theory but also readily available in practice.
This analysis is consistent with the fact that the federal remedy provided by § 1983 is supplementary to whatever state remedy may exist for constitutional violations. The comment to that effect in Monroe v. Pape rested on the premise that a constitutional violation had occurred;*fn27 in that situation the availability of a state remedy could not foreclose the supplementary federal remedy. In this case, however, we are persuaded that the availability of traditional and adequate state procedures for the redress of ordinary property damage tort claims forestalls the conclusion that there has been any deprivation of plaintiff's property without due process of law within the meaning of the Fourteenth Amendment. In short, no federal right was violated by defendants' alleged negligence.
We therefore conclude that plaintiff's alternative theory of recovery must fail because he has not alleged the breach of a constitutional duty derived from the Fourteenth Amendment.
Bonner also contends that the loss of his transcript interfered with his right of access to the Illinois courts. It is clear that defendants owed him a constitutional duty not to abridge such access.*fn28 It follows that they may well have owed him a higher degree of care to avoid the loss of his trial transcript than the duty they owed to him with respect to other items of personal property.
We may assume, as Adams, Sigafus, and DeWitt, supra n. 28, indicate, however, that an intentional taking of a prisoner's legal materials that results in an interference with his access to the courts violates this duty. Thus, with respect to the seizure of his transcript by the prison guards, Bonner has stated, assuming his ability to demonstrate such an interference, a Fourteenth Amendment cause of action as well as the Fourth Amendment claim discussed in section I, supra.
The district court did not have occasion to consider whether, on Bonner's alternative theory of the facts, the defendants breached this noninterference duty by leaving the cell door open, enabling some unknown person to take the transcript. Instead, the judge held that on the facts Bonner would be unable to demonstrate any such interference. We disagree. Bonner's verified complaint indicates the existence of a serious factual dispute in this regard.*fn29
Until we know whether there has been an interference with Bonner's constitutionally protected right of access to the courts, it is premature to express a somewhat abstract opinion on what kind of knowledge or intent on the part of the officers would make such interference actionable under § 1983.*fn30 Important and difficult constitutional questions should not be decided unnecessarily and are best evaluated against the background of a specific factual setting. Since the facts will be developed at trial in all events, the legal determination can be made more reliably after those actual facts have been found.
The summary judgment is vacated and the case is remanded for further proceedings.
FAIRCHILD, Chief Judge, concurring.
With respect to Part I of the opinion of the court, I agree that Bonner has stated a cause of action for the seizure of his transcript. I would predicate the cause of action upon the due process clause of the Fourteenth Amendment, and not reach the question whether an incarcerated individual is entitled to Fourth Amendment protection of his interest in privacy. See, however, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).
With respect to Part II of the opinion, I agree that Bonner's claim that the negligence of the guards caused the loss of his property is not an adequate claim under 42 U.S.C. § 1983. I would base this result on the proposition that the negligence of a state employee which causes loss of property is not state action which deprives the owner of property under the Fourteenth Amendment, nor is it, under § 1983, action under color of state law subjecting the plaintiff to such deprivation. The availability of a state remedy in damages seems to me to be irrelevant to the existence of § 1983 liability. See Monroe v. Pape, 365 U.S. 167, 183, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); Chevigny, Section 1983 Jurisdiction: A Reply, 83 Harv. L. Rev. 1352 (1970).