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.
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. ...