The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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 ...