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March 3, 1982


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


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 temporary locations.

Before the lockdown Stringer lived in cell 128, Cellhouse C. About March 9 he was temporarily relocated to cell 422, Cellhouse B-East. During the relocation a pair of trousers (an article of clothing listed in the memorandum as an approved item of personal property) and a pair of shoes (not so listed) were seized from Stringer by correctional officers. They have not been returned since.

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 C:

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.

Counts I-IV

Count I

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 ...

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