The opinion of the court was delivered by: Will, District Judge.
John Tarkowski has filed a third amended complaint, pursuant
to 42 U.S.C. § 1983,
against Jack Hoogasian, Michael Sieman, Joseph Seputis, and
Thomas Seputis. Hoogasian was the State's Attorney for Lake
County, Illinois, during the fall of 1974. Sieman was an
assistant state's attorney for Lake County, Illinois, during
the fall of 1974. The third amended complaint alleges that
Joseph and Thomas Seputis, doing business as "Tom's Auto," were
the agents of the Lake County State's Attorney's office and
specifically of Hoogasian and Sieman. A court order from the
Circuit Court of Lake County authorized Tom's Auto to go onto
Tarkowski's land and to remove, salvage, or buy various
vehicles and materials. The complaint alleges that on September
20, 1974, Thomas and Joseph Seputis, under the personal
direction of Sieman went onto Tarkowski's land and removed or
destroyed many items of personalty and several buildings,
including items which were not listed in the court order. The
defendants allegedly sold some of the personalty, but gave none
of the proceeds to Tarkowski.
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 ...