Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 73 C 1468 - Abraham Marovitz, Judge.
En Banc. Fairchild, Chief Judge, Swygert, Cummings, Pell, Sprecher, Tone and Bauer, Circuit Judges.*fn* Swygert, Circuit Judge, dissenting.
The facts are fully stated in the panel opinion (517 F.2d 1311 (7th Cir. 1975)) and need not be restated in detail. The sole question before us en banc is whether Bonner may recover damages under 42 U.S.C. § 1983 for the loss of a copy of his trial transcript because Illinois prison guards had negligently left his cell door open after a security search. Bonner asserts that this was a taking of his property without due process of law within the meaning of the Fourteenth Amendment and done under color of state law*fn1 so that it was actionable under 42 U.S.C. § 1983 which provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
We hold that Section 1983 does not provide a remedy.
As stated in the panel opinion, when Bonner returned to his cell in November 1972 after a work assignment, his cell door was ajar and his personal belongings were strewn on the floor. A copy of his trial transcript was missing. The defendants, the Acting Director of the Illinois Department of Corrections, the prison warden and two prison guards, have not denied the allegation that the guards left the cell door open after they had completed the security search. One of Bonner's claims for recovery is that the guards' negligence in leaving his cell door open enabled an unknown person to remove the trial transcript from his cell. The question posed is whether Bonner was thus deprived of his Fourteenth Amendment right not to have his property taken by state action without due process of law.
In Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 44 U.S.L.W. 4337, 4339, the Supreme Court refused to hold that the due process clause of the Fourteenth Amendment and Section 1983 "make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise to state law tort claims." Bonner does not contend that the guards deliberately took his trial transcript in violation of the due process clause. Rather he asserts that their negligence permitted some one else to take it. As Paul explains, the Fourteenth Amendment does not extend to such a claim. Speaking for five members of the Court,*fn2 Justice Rehnquist pointed out:
"Respondent, however, has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded. Rather he apparently believes that the Fourteenth Amendment's Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the 'constitutional shoals' that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); a fortiori the procedural guarantees of the Due Process Clause cannot be the source for such law." (424 U.S. at 700, 44 LW at 4339.)
Similarly here the plaintiff has pointed to no specific constitutional guarantee against the negligence of the two prison guards, even though they might be tortfeasors under Illinois law. The dissenting Justices*fn3 in Paul were of the view that "intentional conduct" infringing a person's liberty or property interests without due process of law is within the reach of Section 1983 (424 U.S. at 720, 44 LW at 4345). They went no further, nor need we. If Section 1983 is to be extended to cover claims based on mere negligence, the Supreme Court should lead the way.
We hold that the negligence of the guards which caused the loss of Bonner's transcript was not a State deprivation of property without due process of law under the Fourteenth Amendment nor action "under color of state law" under Section 1983. No "constitutional tort" has been alleged. In essence, Bonner's claim reduces to an assertion that substantive due process provides the foundation for an attack on the prison guards' conduct. It was precisely such an ex proprio vigore extension of the substantive aspect of due process that the Supreme Court rejected in Paul. Here there was no state action depriving Bonner of property under the Fourteenth Amendment because any state action ended when the guards left the cell after the security search. The loss of the transcript did not occur until after state action had terminated. Similarly, the taking of the transcript was not under color of state law because it was neither encouraged nor condoned by state agents. Any causation between the negligence of the prison guards in leaving the cell door open and Bonner's transcript loss was insufficient to satisfy Section 1983 because it was not alleged that the guards' actions were either intentional or in reckless disregard of Bonner's constitutional rights.
In Monroe v. Pape, 365 U.S. 167, 187, 5 L. Ed. 2d 492, 81 S. Ct. 473, on which plaintiff heavily relies, the Court held that "insofar as [Section 1983] creates an action for damages, [it] must be read in light of the familiar basis of tort liability, that a man is responsible for the natural consequences of his acts." The Monroe standard dealt with facts showing intentional conduct by police which they were legally bound to know would deprive Monroe of constitutional rights. All that the "tort liability" language of Monroe really establishes is that a specific intent to violate constitutional rights of the plaintiff is not required for a Section 1983 violation. But the introduction of a general intent yardstick into the determination of whether conduct is State action or has been performed "under color of state law" does not mean that mere negligence is actionable under Section 1983.*fn4 The guards' culpability here was not of sufficient magnitude to constitute a deprivation of rights under Section 1983.
Our conclusion is reinforced by analogy to Wood v. Strickland, 420 U.S. 308, 322, 43 L. Ed. 2d 214, 95 S. Ct. 992, dealing with official immunity under Section 1983. Under Strickland, there would be no liability for damages caused by an official unless he knew or should have known that he was violating the claimant's constitutional rights or had malicious intent to injure him.*fn5 As Chief Judge Fairchild and then Judge Stevens stated in Thomas v. Pate, 516 F.2d 889, 891 n. 2 (7th Cir. 1975), certiorari denied, 423 U.S. 877, 46 L. Ed. 2d 110, 96 S. Ct. 149, under Strickland, to recover damages against prison officials in a Section 1983 action,
"a plaintiff must prove that the defendant has acted within the sphere of his official responsibility, 'with the malicious intention to cause a deprivation of constitutional rights or other injury to the [plaintiff]/or 'with such disregard to the [plaintiff's] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.'"*fn6
Neither test is satisfied by this complaint.
Monroe v. Pape, supra, also carefully traced the legislative history of Section 1983.*fn7 Neither the language of the statute nor its history shows that Congress was providing a federal remedy for damages caused by the simple negligence of a state employee. In enacting the Civil Rights Act, Congress was obviously intending to provide a deterrent for the type of conduct proscribed. If an officer intentionally causes a property loss, a remedy under Section 1983 might deter similar misconduct. On the other hand, extending Section 1983 to cases of simple negligence would not deter future inadvertence as much as in the case of intentional or reckless conduct. Consequently, the majority of Circuits hold that mere negligence does not state a claim under Section 1983.*fn8 Otherwise the federal courts would be inundated with state tort cases in the absence of Congressional intent to widen federal jurisdiction so drastically.
Our prior decisions, while sometimes containing broad dicta helpful to Bonner, are not to the contrary. The intentional arrest in Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968), was made on a charge for which the defendant police knew they did not have probable cause. Consequently the warrantless arrest was in plain violation of the Fourth Amendment, thus activating Section 1983. In Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), the defendant officers failed to stop other officers who were beating plaintiff in defendants' presence. While intentional torts ordinarily require some affirmative conduct, purposeful nonfeasance can also serve as the basis of liability for an intentional tort if the defendant owes the plaintiff a duty to act. Thus defendants' failure to act in Byrd can be properly characterized as "intentional." Likewise, in Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974), plaintiff did not, as here, allege "mere negligent supervision." There the defendants allegedly failed to protect the deceased even though they knew he had been beaten on at least twenty prior occasions and that he was nonverbal and unable to call for help or defend himself when attacked. In all three cases, the plaintiffs were not relying only on an isolated instance of defendants' mere negligence. Furthermore, each was decided prior to Paul v. Davis, supra.
Today's holding finds support in prior decisions of this Court. In Gutierrez v. Department of Public Safety, 479 F.2d 701, 719-720 (7th Cir. 1973), certiorari denied, 414 U.S. 1146, 39 L. Ed. 2d 102, 94 S. Ct. 900, involving the interplay of the Eighth Amendment and Section 1983, the plaintiff was assaulted because defendants had failed to prevent the assault from taking place. We held there could be no recovery in the absence of intentional infliction of cruel punishment or of such callous indifference that an intent to inflict unwarranted harm could be inferred. Defendants' negligence was deemed insufficient. In Carroll v. Sielaff, 514 F.2d 415 (7th Cir. 1975), the defendants admittedly confiscated the prisoner plaintiffs' typewriter and currency. A cause of action was stated under Section 1983 because of the unlawful and intentional deprivation of property. Similarly, in Kimbrough v. O'Neil, 523 F.2d 1057 (7th Cir. 1975), the defendant deputy sheriff took plaintiff's $2500 ring from him when he was jailed and refused to return it upon his release from custody. None of these cases held negligence actionable under Section 1983.
Bonner relies on Navarette v. Enomoto, 536 F.2d 277 (9th Cir. 1976), as authorizing recovery under Section 1983 for negligent acts. If Navarette does concern mere negligence, we respectfully disagree. However, Navarette apparently concerned negligent conduct resulting in the deprivation of the prisoner's "fundamental and reasonably well-defined" constitutional rights. Id. at 282. The defendants' actions impeded plaintiff's right to correspond through the mail as well as his right to access to the courts. Bonner, however, only points to a generalized due process right. And again, Navarette, other cases cited therein, and similar cases cited by Bonner were decided before Paul v. Davis, supra, and therefore are no longer dispositive.
To sum up, the only constitutional right which could be the subject of Bonner's Count II is his Fourteenth Amendment right not to be deprived of property by state action without due process of law. The property was taken by some person not claimed to be acting under color of law. The guards were acting under color of law in and about his cell and allegedly their negligence facilitated the taking of the transcript by someone else. There is no claim that the guards intended the result or even acted in reckless disregard of Bonner's constitutional rights. Given that lack of intent and lack of reckless disregard, we hold that in the context of Section 1983 the guards did not deprive him of his property and, therefore, did not cause him to be subjected to the deprivation of his Fourteenth Amendment right not to have his property taken by the State without due process.
Insofar as the district court granted summary judgment for defendants with respect to plaintiff's alternative claim based on negligence ...