The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Auther Stringer ("Stringer"), an inmate of Stateville
Correctional Center ("Stateville"), sues a number of state and
correctional officials under 42 U.S.C. § 1983 ("Section 1983")
claiming violations of Stringer's Fourth, Sixth, Eighth and
Fourteenth Amendment constitutional rights.*fn1 Stringer's
action arises out of the institution and aftermath of a
"lockdown" at Stateville in the early months of 1979.
Defendants have moved under Fed.R.Civ.P. ("Rule") 12(b)(6) to
dismiss the Complaint's six counts for failure to state a cause
of action. For the reasons contained in this memorandum opinion
and order, the motion of Governor James Thompson ("Thompson")
is granted and all other defendants' motions are denied.
About February 23, 1979 Stateville Warden Lou Brewer ("Brewer")
asked permission of Thompson and Director of the Illinois
Department of Corrections ("Department") Gayle Franzen
("Franzen") to declare a state of emergency at Stateville. With
permission granted a lockdown ensued, followed by a search of
all residents and areas of Stateville beginning February 24.
On February 23 Franzen, his Assistant Director Michael Lane
("Lane") and Brewer circulated a memorandum to all Stateville
inmates telling them of the lockdown. It also told the inmates
where they would be relocated during the lockdown and what
property they would be allowed to take with them to the
Stringer remained in B-East for about four days, after which he
was returned to cell 128. On his return he discovered a large
amount of personal property was missing from his cell,
including legal papers belonging to Stringer and other legal
papers entrusted to him by other inmates.*fn3 Except for
Stringer's typewriter the missing items have not been returned.
Complaint Counts I through IV are grounded on those facts.
Counts V and VI arise out of Stringer's placement in
investigative segregation shortly after his return to Cellhouse
Stringer was first moved to cell 305, Cellhouse E. Then about
March 28 he was moved again, to cell 342, Cellhouse B-West. At
the same time prison officials placed Stringer under
investigative segregation until April 18, when he was returned
to Cellhouse C.
Cell 342, Cellhouse B-West, where Stringer was confined while
under investigative segregation, had a broken window,
subjecting Stringer to a draft. Additionally its walls were
smeared with human waste, which Stringer was forced to clean
himself. As a result of his placement in cell 342 Stringer
suffered a seizure on April 7 (during the confinement), and
he had to be taken from the cell to receive medical treatment.
Complaint Count I alleges the March 9 seizure of Stringer's
trousers and shoes violated his due process rights. Counts II
and III are directed to the taking of Stringer's personal
property from his cell while he was housed temporarily in
Cellhouse B-East between March 9 and 13 (Count II charges a
violation of Stringer's Fourth Amendment right to be free from
unreasonable searches and seizures, while Count III claims a
violation of the Due Process Clause). Count IV asserts that
seizure of the legal documents regarding Stringer's lawsuits
against Department officials infringed his Sixth Amendment
right of access to the federal courts.
Count I readily withstands defendants' motion to dismiss.
Kimbrough v. O'Neil, 545 F.2d 1059, 1061 (7th Cir. 1976) (en
banc) held "a taking with intent (or reckless disregard) of a
claimant's property by a State agent violates the Due Process
Clause of the Fourteenth Amendment and is actionable under
Section 1983. . . ." Kimbrough too was a prisoner, and that
status can of course make no difference to the result here.
"There is no iron curtain drawn between the Constitution and
the prisons of this country." Wolff v. McDonnell,
418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974).
Stringer's allegations bring him within Kimbrough: Stateville
officials took his property (the trousers and shoes) and the
taking was intentional. Nothing else is required to withstand a
motion to dismiss. While defendants may prove reasons for the
taking that could establish a valid defense, that possibility
cannot support a motion to dismiss. All the Complaint need
state is a set of facts upon which Stringer could recover.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2
L.Ed.2d 80 ...