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Kimbrough v. O'Neil

decided: August 14, 1975.

CLEVELAND KIMBROUGH, PLAINTIFF-APPELLANT,
v.
DAVE O'NEIL, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF ST. CLAIR COUNTY, ILLINOIS; JACK SUTTER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS LIEUTENANT AT THE ST. CLAIR COUNTY JAIL; AND (UNKNOWN) JOHNSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SERGEANT AT THE ST. CLAIR COUNTY JAIL, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Eastern District of Illinois No. 73-154-E JAMES L. FOREMAN, Judge.

Swygert, Cummings and Stevens, Circuit Judges. Swygert, Stevens, Circuit Judges, concurring.

Author: Cummings

CUMMINGS, Circuit Judge.

Plaintiff, a prisoner at the United States prison at Atlanta, Georgia, brought this civil rights action for declaratory relief and compensatory and punitive damages against the Sheriff of St. Clair County, Illinois, and two of his deputies. Plaintiff alleges that his cause of action arises under 42 U.S.C. §§ 1982, 1983, 1985, 1986 and 1988, and that jurisdiction is based on 28 U.S.C. §§ 1331 and 1343.

Plaintiff alleges that while awaiting trial on federal charges, he was committed to the custody of the county jail from March 9 to April 14, 1972. Upon entering the jail, defendant Johnson took a ring and watch from the plaintiff and issued a receipt therefor. Upon the plaintiff's release to federal custody, the ring, which plaintiff claims was a diamond ring valued at approximately $2,500, was not returned to him. A note indicating failure to return the ring was signed by defendant Johnson. Plaintiff states that twelve letters from him requesting the Sheriff's office to return his ring were unanswered.

Plaintiff further alleges that on March 25, 1972, he was summarily placed in a solitary confinement cell where he remained for three days. Plaintiff alleges that the cell had "no toilet; no water for drinking or washing; and no mattress, bedding, or blankets." He further claims that for that period of time he was "forced to eliminate on the floor, and water was brought at the whim of the guard, which was infrequent." He states that he was denied "rudimentary implements of personal hygiene such as toilet paper, soap, washing water and towels"; and that "throughout the nights the Plaintiff was subjected to water being thrown upon him by unknown guards after requesting drinking water, and did eventually cause Plaintiff to suffer a severe cold and fever and denial of any semblance of medical treatment." He alleges that during this period of confinement he was denied the right to communicate with his attorney, family and friends by mail or visits.

It is alleged that the defendants "acted deliberately, maliciously and with the motive and intent of punishing Plaintiff because of his Race, social, political, religious and moral views." Plaintiff claims violation of his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments.

Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. The district court granted the motion to dismiss on March 26, 1974. In its order the court said that while the conditions in solitary confinement "may have been restrictive," they were not cognizable under the Civil Rights Act because they lasted only three days. It also held that while the loss of the ring might be considered a deprivation of property without due process, the Fourteenth Amendment was not designed to cover the loss involved in this case. In a brief order on April 29, 1974, the court reaffirmed its earlier holding and denied a motion by the plaintiff to vacate. Plaintiff appeals from this order. Upon the record and briefs, and without oral argument, we reverse and remand for further proceedings. Rule 2, Fed. R. App. P.

The plaintiff's allegations of the conditions of his confinement state a claim for relief under 42 U.S.C. § 1983 for an unconstitutional imposition of cruel and unusual punishment. The conditions alleged are "so foul, so inhuman and so violative of basic concepts of decency," Adams v. Pate, 445 F.2d 105, 109 (7th Cir. 1971), that their existence, even for a period of three days, could constitute a violation of the Eighth Amendment. LaReau v. MacDougall, 473 F.2d 974 (2d Cir. 1972), cert. denied, 414 U.S. 878, 94 S. Ct. 49, 38 L. Ed. 2d 123 (1973). Plaintiff also alleged that he was placed in solitary confinement "after demanding use of telephone to contact attorney concerning an emergency situation." Such allegations would permit the plaintiff to attempt to prove that his confinement violated the Eighth Amendment for another reason, for being grossly out of proportion to the conduct for which punishment was imposed. Haines v. Kerner, 492 F.2d 937, 942 (7th Cir. 1974).

Plaintiff's allegation that the ring which was taken from him by defendants was not returned to him upon his release from their custody is sufficient to state a cause of action under 42 U.S.C. § 1983. Carroll v. Sielaff, 514 F.2d 415 (7th Cir. 1975). These facts would also state a claim for relief for tortious conversion under Illinois law. Should plaintiff wish to pursue this theory of recovery, we would consider it an abuse of discretion for the district court to decline to exercise pendent jurisdiction over the state claim.*fn*

The order appealed from is reversed and the case remanded for further proceedings.

Reversed and remanded.

Disposition

Reversed and ...


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