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February 19, 1982


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


The third amended complaint was filed on April 8, 1981. On January 16, 1976, we dismissed Tarkowski's pro se second amended complaint against various defendants including Thomas and Joseph Seputis on all claims, and against Hoogasian and Sieman on all claims except an allegation of discriminatory prosecution. On June 22, 1981, we rejected a challenge to the third amended complaint which the Seputises based upon the statute of limitations and the concepts of res judicata and collateral estoppel.

The defendants Hoogasian and Sieman now move for dismissal for lack of jurisdiction and failure to state a claim. Specifically, the defendants contend that the Supreme Court's recent opinion in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), establishes that deprivation of property rights by state officials acting under color of state law does not violate due process if state law provides adequate remedies to redress the loss. Accordingly, they contend, an essential element of Tarkowski's section 1983 claim — that the deprivation occurred without due process of law — could not be established if state tort law was available and adequate to redress his losses. For the reasons stated below, we deny the defendants' motion.


Parratt involved a state prisoner's claim that the loss or theft of a "hobby kit," valued at $23.50, had resulted from the negligence of prison officials. Justice Rehnquist suggested in Parratt that negligence may support recovery under section 1983 for loss of property in some cases:

    Nothing in the language of § 1983 or its
  legislative history limits the statute solely to
  intentional deprivations of constitutional rights.
  In Baker v. McCollan, [443 U.S. 137, 99 S.Ct. 2689,
  61 L.Ed.2d 433 (1979)], we suggested that simply
  because a wrong was negligently as opposed to
  intentionally committed did not foreclose the
  possibility that such action could be brought under
  § 1983. We explained:
    "[T]he question whether an allegation of simple
    negligence is sufficient to state a cause of
    action under § 1983 is more elusive than it
    appears at first blush. It may well not be
    susceptible of a uniform answer across the entire
    spectrum of conceivable constitutional violations
    which might be the subject of a § 1983 action."

101 S.Ct. at 1912, quoting Baker v. McCollan, 443 U.S. at 139-40, 99 S.Ct. at 2692; see Project: Eleventh Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1980-1981, 70 Geo.L.J. 365, 817 (1981). The initial inquiry in a section 1983 action, however, is (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. 101 S.Ct. at 1913.

The Court adopted the reasoning of Justice Stevens (then Judge Stevens) in Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975) ("Bonner I"), modified en banc, 545 F.2d 565 (1976) ("Bonner II"), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978), a case where a prisoner alleged that prison officials, following a "shakedown" of his cell during his absence, "made it possible by leaving the door of Plaintiff's cell open, for others without authority to remove Plaintiff's trial transcript from his cell." 517 F.2d at 1318. Justice Stevens concluded:

    It seems to us that there is an important
  difference between a challenge to an established
  state procedure as lacking in due process and a
  property damage claim arising out of the
  misconduct of state officers. In the former
  situation the facts satisfy the most literal
  reading of the Fourteenth Amendment's prohibition
  against "State" deprivations of property; in the
  latter situation, however, even though there is
  action "under color of" state law sufficient to
  bring the amendment into play, the state action is
  not necessarily complete. For in a case such as
  this the law of Illinois provides, in substance,
  that the plaintiff is entitled to be made whole
  for any loss of property occasioned by the
  unauthorized conduct of the prison guards. We may
  reasonably conclude, therefore, that the existence
  of an adequate state remedy to redress property
  damage inflicted by state officers avoids the
  conclusion that there has been any constitutional
  deprivation of property without due process of law
  within the meaning of the Fourteenth Amendment.

Id. at 1319, quoted in Parratt, 101 S.Ct. at 1916.

The logic of Parratt and Bonner, at least theoretically, might just as easily apply to intentional, as well as to negligent, deprivations of property by state officers acting under color of state law, though neither Parratt nor Bonner addresses intentional deprivations of property. Justice Rehnquist's opinion in Parratt distinguished between cases where a tortious loss results from a state employee's "random and unauthorized act," 101 S.Ct. at 1915, and those ...

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