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December 31, 1981


The opinion of the court was delivered by: Shadur, District Judge.


Alan Ragusa ("Ragusa") sues the Streator Police Department,*fn1 its Chief of Police David Kaschak and Officer William Bohne in a purported civil rights action under 42 U.S.C. § 1983 ("Section 1983"). Both policemen are alleged to have deprived Ragusa of property without due process of law by having impounded Ragusa's 1969 GMC pickup truck*fn2 and then having "refused or neglected to complete the proper release forms when duly requested to do so by [Ragusa]" (Complaint ¶ 9). While the vehicle was in custody the officers "or others not presently known to [Ragusa] intentionally or negligently removed or allowed to be removed [various] items of personal property" (Complaint ¶ 10) of an alleged total value of some $1100, and the windshield was damaged requiring $160 in repairs. Finally the officers "or others not presently known to [Ragusa] either sold the aforesaid property at auction without notice to [Ragusa] or otherwise intentionally or negligently converted that property to their own personal use" (Complaint ¶ 11).

Defendants have moved to dismiss Ragusa's Complaint. For the reasons stated in this memorandum opinion and order, their motion is granted in part and denied in part.

Ragusa's Failure To State a Federal Claim for Negligence

Civil case filings in this District Court during 1981 have once again followed the familiar pattern of breaking all previous annual records by a wide margin. As a concomitant to that increase without any corresponding increase in the number of judges,*fn3 calendars grow even larger and more unmanageable. To some extent the increased influx is due to expanded sources of federal jurisdiction. But all too much of this growth industry is traceable to frivolous actions (in the federal sense) like Ragusa's negligence claim.

Defendants' supporting memorandum said they would (as they must) treat the Complaint's allegations as true for purposes of their motion. Despite that, defendants have made a number of factual statements in their memoranda (of which this opinion's footnote 2 reflects only one example) that belong in a motion for summary judgment rather than a motion to dismiss. But taking the Complaint at face value, its negligence claims are remarkable primarily for having totally ignored two controlling United States Supreme Court decisions*fn4 handed down a few months before this action was filed at the end of August 1981.

In June 1981 Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) had put it beyond question that the determination of what process is due*fn5 for a negligent deprivation of property like that alleged by Ragusa depends on whether "the tort remedies which the State of [Illinois] provides as a means of redress for property deprivations satisfies the requirements of procedural due process" (id. at 1914). Parratt also taught that under circumstances comparable to those alleged by Ragusa a post deprivation hearing satisfies the requirements of due process. All that means is the availability of a conventional tort remedy in the Illinois courts, an action plainly available to Ragusa. Though definitive in nationwide terms, Parratt scarcely represented new law. Bonner v. Coughlin, 517 F.2d 1311, 1320 (7th Cir. 1975), modified en banc 545 F.2d 565 (1976), cert. denied 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978).

Justice Powell's concurrence in Parratt might have been written for this case (101 S.Ct. at 1922 n. 13):

  The present case . . . illustrates the extent to
  which constitutional law has been trivialized, and
  federal courts often have been converted into
  small-claims tribunals. There is little justification
  for making such a claim a federal case. . . .

If Ragusa's negligence claim has substance he is free to assert it in the Illinois courts without having to overcome any jurisdictional hurdles. It is frankly difficult to understand why he felt compelled, in the face of Parratt and with a readily available remedy elsewhere, to add (as Justice Powell added) to "an overburdened federal system."

Accordingly defendants' motion to dismiss is granted as to the Complaint's claims of their negligence.*fn6 This ruling extends as well to allegations that "others not presently known to [Ragusa] intentionally" took action that injured Ragusa, for such allegations would at worst charge defendants with negligence in having failed to prevent the possibility of such action.

Ragusa's Claim for Defendants' Intentional Misconduct

There remain for consideration the Complaint's allegations of intentional misconduct by the individual defendants. Such allegations do survive a motion to dismiss a Section 1983 lawsuit, under Kimbrough v. O'Neil, 545 F.2d 1059, 1061 (7th Cir. 1976). However Ragusa would then be left with only a piece — and the more difficult piece — of his possible claim. This Court will leave it to Ragusa to determine whether under the ...

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