Petitioners Brief — Parratt v. Taylor

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No. 79-1734 DEG 3 19:

AK. JR

In The

Supreme Court of the United States

October Term, 1980

ROBERT PARRATT and FRANCIS LUGENBILL,

Petitioners,

Vs.

BERT TAYLOR, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

fal

PETITIONERS’ BRIEF ON THE MERITS

PAUL L. DOUGLAS

Attorney General

J. KIRK BROWN

Assistant Attorney General

State of Nebraska

2115 State Capitol Building

Lineoln, Nebraska 68509

Tel. (402) 471-2682

Attorneys for Petitioners.

COCKLE PRINIING CO., 231 Douglas St., Omaha 68102

QUESTIONS PRESENTED FOR REVIEW

1, Whether certain types of property are so de mini-

mis as to not be protected by the Fourteenth Amendment

under 42 U.S.C. § 1983.

2. Where a state prisoner claims to have suffered a

tortious loss of property, whether the existence of a state

tort claims remedy available to that prisoner provides

him with such a level of due process as to satisfy require-

mentes of the Fourteenth Amendment.

3. Whether simple negligence, if proven, may form

the basis of a judgment under 42 U.S.C. § 1983.

4. Whether the record supports a finding that either

of the petitioners were negligent.

LIST OF PARTIES

The caption of this case contains the names of all

parties.

Pages

Questions Presented for Review i

List of Parties i

Table of Contents ii

Opinions Below 1

Jurisdiction 2

Constitutional Provisions and Statutes Involved .......... 2

Statement of the Case

Summary of Argument

TABLE OF CONTENTS

Argument:

I. Fourteenth Amendment, due process and inmate

IT.

property loss.

The issue of negligence.

B. The Monroe decision.

D. The concept that negligent conduct does not

Is property valued at $23.50 entitled to the

protection of the Fourteenth Amendment? ......

Is a state prisoner provided process adequate

under the Fourteenth Amendment where the

state affords him a remedy to redress the loss

of property caused by the negligence of its

agents?

Legislative history. ......

The Monroe dicta.

create a basis for liability under § 1983 is eon-

sistent with previous rulings of this court.

ili

TABLE OF CONTENTS—Continued

Pages

1. Estelle v. Gamble. 19

2. Negligence cases where liability was re-

jected by this Court. 20

3. Cases rejecting negligence as a basis of

liability allowed to stand. 24

EK. Creating liability under § 1983 for negligent

conduct is inconsistent with a qualified im-

munity. 26

1. The qualified immunity. 26

2. The public policy. —.. 28

F. Application of the law to this ease. 29

III. The record in this case does not establish that

the petitioners were negligent. 30

Conclusion 33

TABLE OF CASES

Armstrong v. United States, 364 U.S. 40 (1960)... 9

Arnett v. Kennedy, 416 U.S. 134 (1974) 10

Baker v. McCollan, 443 U.S. 137 (1979) ..7, 13, 21, 22, 32, 34

Bell v. Wolfish, 441 U.S. 520 (1979) 23

Bogard v. Cook, 586 F. 2d 399 (5th Cir. 1978), cert.

denied 444 U.S. 833 25, 27

Bonner v. Coughlin, 517 F. 2d 1311 (7th Cir. 1975)

mod. en banc 545 F. 2d 565, cert. denied 435 U.S.

932 12, 24, 25

TABLE OF CASES—Continued

Pages

Estelle v. Gamble, 429 U.S. 97 (1976) 6, 19, 20

Foster v. United States, 607 F. 2d 943 (Ct. Cl. 1979) ...... 8

Fuentes v. Shevin, 407 U.S. 67 (1972) 7

Howard v. Swenson, 426 F. 2d 227 (8th Cir. 1976),

cert. denied 400 U.S. 948 7

Ingraham v. Wright, 480 U.S. 651 (1977) 11

Martinez v. California, 444 U.S. 277 (1980) WW. —-23

Mathews v. Eldridge, 424 U.S. 319 (1976) 34

Monroe v. Pape, 365 U.S. 167 (1961) 12, 15, 16,

17, 18, 19, 24

Nickens v. White, 536 F. 2d 802 (8th Cir. 1976) ww. = 7

Paul v. Davis, 424 U.S. 693 (1976) 9, 16, 18, 20, 23

Procunier v. Navarette, 434 U.S. 555 (1978) —...21, 25, 26, 29

Scheuer v. Rhodes, 416 U.S. 232 (1974) 21, 27

Screws v. United States, 325 U.S. 91 (1945) 2. 17,18

Sniadach v. Family Finance Corporation of Bay

View, 395 U.S. 337 (1969) 7,8

Sun Oil Company v. United States, 577 F.2d 786

(Ct. Cl. 1978) 8

Thorton v. Redman, 435 F. Supp. 876 (D. Del. 1977) ... 32

United States v. Classic, 313 U.S. 299 (1941) .W0W. =17

Williams v. United States, 341 U.S. 97 (1951) +4 s«@17

Wood v. Strickland, 420 U.S. 308 (1975) —..21, 25, 27, 28, 29

TABLE OF STATUTES

Pages

42 U.S.C. $1983 _ 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18,

19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35

28 U.S.C. § 1254 (1) 2

Neb. Rev. Stat. $§ 81-8,209, et seq. (Reissue 1976) —..3, 10

TABLE OF CONSTITUTIONS

United States Constitution, Fifth Amendment .......... 8, 9, 34

United States Constitution, Eleventh Amendment ....... 13

United States Constitution, Fourteenth Amendment ... 2, 4,

d, 7, 8, 9, 11, 12, 13, 15, 17, 20, 34

TABLE OF OTHER CITATIONS

Abdalian and Lachman, Federal Courts and Small

Claims: Prisoners’ § 1983 Actions and § 1983,

33 Ark. L. Rev. 90 (1979) 8

Cong. Globe, 42d Cong., Ist Sess., App. 374 15

Restatement of the Law (Second), Torts 2d, § 289

and § 298 31, 32

No. 79-1734

In The

Supreme Court of the United States

October Term, 1980

fy.

ROBERT PARRATT and FRANCIS LUGENBILL,

Petitioners,

vs.

BERT TAYLOR, JR.,

Respondent.

ra’

~ ae

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

ra’

PETITIONERS’ BRIEF ON THE MERITS

OPINIONS BELOW

The opinion of District Judge Albert G. Schatz grant-

ing the respondent’s motion for summary judgment is

unreported and appears as Appendix B to the Petition for

Writ of Certiorari.

The opinion of the Court of Appeals is also unreported

(See, 620 F.2d 307) and appears as Appendix C to the

Petition for Writ of Certiorari.

JURISDICTION

The judgment of the Cireuit Court of Appeals was

filed January 29, 1980. The petitioners’ petition for re-

hearing to the Circuit Court of Appeals was denied on

February 29, 1980. The jurisdiction of this Court is in-

voked under 28 U.S.C. §1254(1). A Writ of Certiorari

was granted October 20, 1980.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

1. Fourteenth Amendment, United States Constitu-

tion:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immun-

ities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

2. 42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

3. Neb. Rev. Stat. § 81-8,209, et seq. (Reissue 1976)

appears as Appendix E to the Petition for Certiorari.

STATEMENT OF THE CASE

This action was filed in the United States District

Court for the District of Nebraska under 42 U.S. C. § 1983

by a prisoner of the State of Nebraska to recover the value

of certain hobby materials lost while being stored for the

prisoner at the Nebraska Penal and Correctional Complex

(NPCC), Lincoln, Nebraska. Named as defendants were

Robert Parratt, Warden of NPCC, and Francis Lugenbill,

Hobby Manager at NPCC (J. A. 5). The case was decided

upon the plaintiff’s Motion for Summary Judgment (J. A.

18).

The hobby materials in question were ordered by the

plaintiff and paid for by him in accordance with NPCC

procedures (Petition for Certiorari, Appendix A, para-

graph 2). When the items arrived at NPCC a receipt

was signed for them by two Hobby Center employees, one

civilian and one inmate (J. A. 15, answer 7; J. A. 17, an-

swers 4-8). These items were retained at the Hobby Cen-

ter because at the time of their arrival the plaintiff was in

disciplinary segregation and was not permitted hobby ma-

terials (Petition for Certiorari, Appendix A, paragraph 4).

Neither of the parties who signed the receipts for the

property in question were named as defendants (J. A. 5).

When the plaintiff left disciplinary segregation he at-

tempted to claim his property at the Hobby Center but

various searches by NPCC personnel failed to locate it

(J. A. 17-18, Answers 9-13; Petition for Certiorari, Appen-

dix A). The undisputed value of the property in question

was $23.50.

The district court, upon consideration of the record,

granted the plaintiff’s motion for summary judgment

(Petition for Certiorari, Appendix B), specifically find-

ing that “negligence can form the foundation for an action

under section 1983.”

On appeal the judgment of the district court was

summarily affirmed (Petition for Certiorari, Appendix C).

SUMMARY OF ARGUMENT

1. There exist certain de minimis levels or values

of property which are not entitled to the protection of

the Fourteenth Amendment. The value of the property

here is $23.50. If that property is de minimis, then de-

privation of that property does not violate the Fourteenth

Amendment and proof of that loss does not create a

basis for liability under 42 U.S.C. § 1983.

2. In order to constitute a deprivation of property

under the Fourteenth Amendment there must be a gov-

ernmental “taking” of such property. Such “taking” is

inherently an intentional act and occurs for a govern-

mental purpose. The loss of property due to the simple

negligence of governmental employees is not an inten-

BH)

tional act and fulfills no governmental purpose. Thus,

such a loss does not violate the Fourteenth Amendment.

In the absence of a violation of a right guaranteed the

respondent by the Fourteenth Amendment, no basis for

hability under 42 U.S.C. § 1983 exists.

3. The Fourteenth Amendment guarantees a citizen

“due process” with respect to a property deprivation. It

does not guarantee the citizen he will not be deprived of

his property. If the state can negligently deprive a per-

son of his property within the meaning of the Fourteenth

Amendment, an adequate, state afforded, post-loss rem-

edy should provide the citizen all of the process he is due

under that Amendment. The statutes of the State of

Nebraska afforded the respondent such a remedy. He

was not denied his property without the availability of

the process he was due under the law, and thus there is

no basis for liability under 42 U.S.C. § 1983.

4. 42 U.S.C. $1983 was not intended by the Con-

gress to penalize negligent conduct. Its intent was to

penalize the knowing malfeasance or nonfeasance of gov-

ernment officials.

In cases concerning 42 U.S.C. §1983 this Court

has consistently allowed to stand Cireuit Court decisions

which concluded that negligent conduct did not create lia-

bility under that statute, while consistently finding in

favor of governmental defendants in those cases in which

lower courts have attempted to impose liability under

a simple negligence standard.

Furthermore, the concept that simple negligence could

give rise to a cause of action under 42 U.S.C. $1983 is

inconsistent with both the “deliberate indifference” stand-

ard employed by this Court in Estelle v. Gamble, 429 U.S.

97 (1976), and the evaluation of actions which give rise

to a qualified immunity for correctional personnel.

5. The record before the lower courts did not estab-

lish that either of the petitioners was negligent. Their

only duty to the respondent was to take reasonable ef-

forts to protect his property. This they did by creating

a system for safeguarding property contained in an in-

mate’s incoming mail. There is no evidence that the sys-

tem devised was generally defective. There is only evi-

dence that the system failed in this one instance. The

petitioners had no personal contact with the property prior

to its loss.

To hold the petitioners liable on this record is to

require them to function as insurers of an inmate’s prop-

erty. No negligent acts were proven.

ARGUMENT

Fourteenth Amendment, Due Process and In-

mate Property Loss.

In this case the respondent (a state prisoner) brought

a 42 U.S.C. $1983 (hereinafter $1983) action against the

petitioners (the Warden and a subordinate officer) on

allegations that property valued at $23.50 had been lost

while being held for him by institutional personnel (none

of whom were defendants below). The district court con-

cluded the respondent kad proven a claim based upon the

violation of his rights under the Fourteenth Amendment

in that he had, by the negligence of the petitioners, been

denied his property without due process of law.

In Baker v. McCollan, 443 U.S. 137 (1979), this Court

stated: “The first inquiry in any § 1983 suit, therefore,

is whether the plaintiff has been deprived of a right

‘secured by the Constitution and laws.’” Jd. at 140. In

this instance, the initial question is whether, under these

facts, the Fourteenth Amendment’s due process clause

protects the rerpondent from the negligent deprivation

of his property by state employees.

A. Is Property Valued at $23.50 Entitled to the

Protection of the Fourteenth Amendment?

The value of the property here in question is $23.50.

This Court has in the past discussed the possibility that

there are minimal limits to the value of property to be

afforded due process protection. Fuentes v. Shevin, 407

U.S. 67, 90, n. 21 (1972); and Sniadach v. Family Finance

Corporation of Bay View, 395 U.S. 337, 342 (1969) (Har-

lan, J., concurring). Establishing an arbitrary limit to the

amount which must be in controversy before a § 1983

claim for loss of property without due process of law

would provide this Court a mechanism to stem, to a lim-

ited extent, the tide of state prisoner § 1983 litigation

flowing into the federal courts. See, Nickens v. White,

536 F. 2d 802 (8th Cir. 1976); Howard v. Swenson, 426

F. 2d 227 (8th Cir. 1976) cert. denied, 400 U.S. 948.

Where or whether that line should be drawn presents a

difficult question which only this Court may resolve, par-

ticularly in view of Mr. Justice Harlan’s conclusion that

the loss e* the “use” of approximately $31.00 is not de

minimus. Sniadach v. Family Finance Corp., supra. See

also, Abdalian and Lachman, Federal Court and Small

Claims: Prisoners’ § 1983 Actions and § 1983, 33 Ark. L.

Rev. 90 (1979).

B. Is a State Prisoner Provided Process Ade-

quate Under the Fourteenth Amendment

Where the State Affords Him a Remedy to

Redress the Loss of Property Caused by the

Negligence of Its Agents?

In this case we initially question whether property

loss occasioned by the negligent conduct of a state em-

ployee even falls within the concept of a “taking” as con-

templated by the Fifth and Fourteenth Amendments. In

essence, we believe that the constitution contemplates a

“taking” as an intentional governmental act and not neg-

ligence. “Before a taking can be established, it must be

clear that there was an intent by the defendant to take

private property.” (Emphasis added.) Sun Oil Co. v.

United States, 577 F. 2d 786, 818 (Ct. Cl. 1978). See

also, Foster v. United States, 607 F. 2d 943, 950 (Ct. Cl.

1979). A loss of property occasioned by simple negli-

gence is not an intentional act and therefore should not

be considered the type of “taking” to which the Consti-

tution attaches the requirement of due process.

In other important respects a negligently caused loss

of property does not fall within standard concepts of a

governmental taking.

The Fifth Amendment’s guarantee that private

property shall not be taken for a public use without

just compensation was designed to bar Government

from forcing some people alone to bear public bur-

dens which, in all fairness and justice, should be

borne by the public as a whole.

Armstrong v. United States, 364 U.S. 40, 49 (1960) (Em-

phasis added). The property in question here was not

taken by governmental agents. The current possessors

of the property in question, and the purpose to which it

has been put, remains a mystery. What is clear is that

the property was not taken intentionally or “for a public

use.” “It is true that not every destruction or injury of

property by governmental action has been held to be a

‘taking’ in the constitutional sense.” Jd. at 48. The re-

spondent here attempts to accomplish exactly the same

result under the Fourteenth Amendment that the respond-

ent in Paul v. Davis, 424 U.S. 693 (1976), sought un-

successfully to do.

[The respondent] apparently believes that the Four-

teenth Amendment’s Due Process Clause should ex

proprio vigore extend to him a right to be free of

injury wherever the State may be characterized as

the tortfeasor. But such a reading would make of

the Fourteenth Amendment a font of tort law to be

superimposed upon whatever systems may already

be administered by the States.

Id. at 701. (Emphasis added.)

Assuming for the moment, however, that negligently

lost property has been “taken” by the state within the

meaning of the Fourteenth Amendment, what process is

due the citizen for such loss? Obviously, the citizen can-

not be provided due process prior to a loss occasioned

by negligence. If no opportunity exists to provide due

process prior to the loss, one must determine whether the

provisions of the Amendment have at that point already

been abridged or whether affording the citizen subsequent

process will satisfy its requirements.

In Arnett v. Kennedy, 416 U.S. 134 (1974), the Court

considered the due process entitlements under the Fifth

Amendment of a federal employee dismissed from his

position. The plaintiff claimed that he should be entitled

to a full due process hearing prior to his discharge rather

than being afforded a full due process hearing subse-

quently. This Court held, ‘‘[A] hearing afforded by ad-

ministrative appeal procedures after the actual dismissal

is a sufficient compliance with the requirements of the Due

Process Clause.” Jd. at 157.

In this case, there could be no pre-loss hearing and

Neb. Rev. Stat. §§ 81-8,209, et seq. (Reissue 1976), (Peti-

tion for Writ of Certiorari, Appendix E) provided the re-

spondent an adequate post-loss process by which to seek

redress. However, as did the appellee in Arnett v. Ken-

nedy, Id., the respondent chose not to avail himself of the

process afforded him. He should be afforded no greater

relief.

As Mr. Justice White discussed in the opinion he

filed in Arnett v. Kennedy, Id. at 171-203, the Court has

repeatedly upheld, under due process challenge, proced-

ures which provide a citizen an opportunity, after the

loss is suffered, to seek redress.

This basic principle has unwaveringly been ap-

plied when private property has been taken by the

State. A fundamental requirement of due process is

“the opportunity to be heard.” Grannis v. Ordean,

234 U.S. 385, 394 (1914). “It is an opportunity

which must be granted at a meaningful time and in

a meaningful manner.” Armstrong v. Manzo, 380

U.S. 545, 552 (1965). Where the Court has rejected

the need for a hearing prior to the initial “taking,”

a principal rationale has been that a hearing would

be provided before the taking became final. See

North American Cold Storage Co. v. Chicago, 211

U.S. 306 (1908) (seizure of food unfit for consump-

tion); Central Trust Co. v. Garvan, 254 U.S. 554

(1921) (seizure of property under Trading with the

Knemy Act); Corn Exchange Bank v. Coler, 280 U.S.

218 (1930) (seizure of assets of an absconding hus-

band) ; Phillips v. Commissioner, 283 U.S. 589 (1931)

(collection of a tax); Bowles v. Willingham, 321 U.S.

503 (1944) (setting of price regulations) ; Fahey v.

Mallonee, 332 U.S. 245 (1947) (appointment of con-

servator of assets of savings and loan association) ;

Ewing v. Mytinger & Casselberry, 339 U.S. 594

(1950) (seizure of misbranded articles in commerce).

While these cases indicate that the particular inter-

ests involved might not have demanded a hearing

immediately, they also reaffirm the principle that

property may not be taken without a hearing at some

time.

Id. at 178-179). The Nebraska tort claims procedure pro-

vided the respondent exactly that type of opportunity.

In Ingraham v. Wright, 480 U.S. 651 (1977), this

Court faced the question of what process was required

where corporal punishment in the public schools was in-

volved. This Court concluded that the Fourteenth Amend-

ment did not require notice and hearing prior to the im-

position of punishment. More applicable to this case,

however, is the following: “When only an invasion of a

property interest is involved, there is a greater likeli-

hood that a damages award will make a person completely

whole . . . In the property context, therefore, frequently

a postdeprivation state remedy may be all the process

that the Fourteenth Amendment requires.” Jd. at 701

(Stevens, J., dissenting).

If a state-afforded, post-loss process is available to

a prisoner who has suffered a property loss due to the

negligence of a state employee, and if that process other-

wise comports with due process requirements, then the

prisoner is afforded his Fourteenth Amendment rights by

virtue of the existence of that process. If afforded the

process due him under the Fourteenth Amendment, the

prisoner’s rights have not been abridged and no basis for

a cause of action exists under § 1983.

This position should not be confused with a require-

ment that state administrative remedies must be ex-

hausted prior to filing a $1983 action. Not only is this

concept directly contrary to the long standing proposi-

tion that $1983 litigants cannot be required to exhaust

state remedies, Monroe v. Pape, 365 U.S. 167, 187 (1961),

but ignores the fact that a person is only entitled to due

process once for one loss. If the state can provide a sys-

tem which meets the requirements of the Fourteenth

Amendment and afford possible redress where property

1 When faced with a factual situation almost identical to the

present case, the conclusion that a state tort remedy pre-

vented a Fourteenth Amendment violation was the first

alternative for resolution employed in Bonner v. Coughlin,

517 F.2d 1311 (7th Cir. 1975) mod. en banc 545 F. 2d 565,

cert. denied, 435 U.S. 932. The en banc decision subse-

quently rejected the prisoner’s cause of action on the alter-

native ground that negligence does not state a cause of

action under § 1983.

has been lost due to the negligent acts of a state em-

ployee, then nothing further need be afforded. No prop-

erty has been taken without due process. No right se-

cured by the Constitution or laws has been abridged.

Baker v. McCollan, supra. No basis for an action under

§1983 exists.

We believe it incumbent upon us to point out here

one difficulty we observe with the concept that due

process afforded at the state level avoids § 1983 liability.

It remains true that the Eleventh Amendment prohibits

§1893 judgments against the states but does not pro-

hibit awards of damages against individual governmental

defendants. If the existence of a state administrative

remedy (where the state has volunteered to pay) is found

to eliminate any jurisdictional basis for § 1983 judgments

against individual defendants, how does one justify im-

posing personal liability upon another defendant, in an-

other state, for exactly the same conduct, simply because

his state has not chosen to abrogate its sovereign immu-

nity? This conclusion leaves individual defendants ex-

posed to personal liability under $1983 in one instance

and shielded from liability in another, where the only

variable (the state’s decision to waive its sovereign im-

munity) is totally beyond the defendants’ control.

Even if one is willing to conclude that the Fourteenth

Amendment, as enforced through §1983, compels the

states to abrogate their sovereign immunity or allow their

employees to suffer the risk of personal liability under

that statute, this places the personal fortunes of individ-

ual governmental servants at risk in a conflict between

the state and federal governments which they are power-

less to affect.

We believe a more equitable solution can be found.

One which would uniformly protect or penalize the acts

of state employees based upon the quality of their con-

duct alone. This can be done by a final resolution of

the question of whether negligent conduct creates a basis

for liability under $1983.

II.

The Issue of Negligence.

The next question presented is whether liability may

be imposed under §1983 for negligent conduct. In this

case the United States District Court for the District of

Nebraska held, and the United States Court of Appeals

for the Eighth Circuit summarily affirmed the proposi-

tion that, “[N]egligence can form the foundation for an

action under Section 1983.’’ (Petition for Certiorari,

Appendix B). It is the belief of the petitioners that

neither the legislative history of $1983 nor the rulings

of this Court interpreting $1983 support the proposition

adopted by the courts below.

The petitioners believe that in the absence of evi-

dence that they abused their authority as officers of the

State of Nebraska’s penal system—in the absence of evi-

dence establishing that they intended the loss in question

to occur or displayed deliberate indifference to the po-

tential for such loss—that no basis for an award of dam-

ages under § 1983 exists.

A. Legislative History.

The legislative history which underlies § 1983 was

extensively discussed by this Court in Monroe v. Pape,

supra (hereinafter Monroe). In Monroe, this Court con-

cluded that the legislation which created § 1983 had three

main purposes. First, to “override certain kinds of state

laws” which were violative of the Fourteenth Amendment.

Id. at 173. Second, to provide “a remedy where state

law was inadequate.” Id. “The third aim was to provide

a federal remedy where the state remedy, though ade-

quate in theory, was not available in practice.” Id. at 174.

Section 1983 was enacted against the backdrop of the law-

less post civil war activities of the Ku Klux Klan, but it

was not at the activities of the Klan that § 1983 was di-

rected. “It was not the unavailability of state remedies

but the failure of certain States to enforce the laws with an

equal hand that furnished the powerful momentum behind

[§ 1983].” Id. at 174-175.

The conscious refusal of state officials te prosecute

and bring to justice those persons terrorizing the newly

enfranchized and other union supporters created the “mo-

mentum” for the passage of § 1983.

While murder is stalking abroad in disguise,

while whippings and lynchings and banishment have

been visited upon unoffending American citizens, the

local administrations have been found inadequate or

unwilling to apply the proper corrective .. . Immu-

nity is given to crime, and the records of the public

tribunals are searched in vain for any evidence of

effective redress.

Cong. Globe, 42d Cong., Ist Sess., App. 374. In context

then, the focus of § 1983, as relevant here, was to correct

the intentional malfeasance or nonfeasance of state offi-

cials during the near anarchy of reconstruction.

It is important here to contrast the evils which gave

birth to $1983 with the facts to which the respondent now

seeks to have it applied. Compare the social evil inherent

in the conscious willingness of state officials to ignore

the murder, rape and mutilization of persons supposedly

under their protection with the facts in this case. The

petitioners were not willing spectators at the victimiza-

tion of the respondent’s rights. On the contrary, they

actively established at the penal institution under their

control a procedure to protect the respondent’s property.

The establishment of that system was the only act which

ultimately brings them before this Court. To claim that

the conscious creation of a system to safeguard an in-

mate’s property and the subsequent failure of that system

on a single occasion implicates the same type of wrong-

doing contemplated by the creators of $1983 does a dis-

service not only to the petitioners but to the history of

§ 1983 itself. As this Court stated in Paul v. Davis, supra

at 669, “We think it would come as a great surprise to

those who drafted and shepherded the adoption of ...

[the Fourteenth] Amendment to learn that it worked such

a result, and a study of our decisions convinces us they

do not support the construction urged by respondent.”

B. The Monroe Decision.

In Monroe six negro children and their parents sought

an award of damages under $1983 where they alleged

their residence was broken into by thirteen police officers

of the City of Chicago. They were taken from their beds

and made to stand naked in their living room while the

entire residence was ransacked by the officers. This oc-

curred at night and without either a proper search or

arrest warrant. The father was subsequently taken to

a police station and held incommunicato for approxi-

mately ten hours without any form of legal process. The

father was then released without any charges being filed.

Monroe, supra at 169.

The Monroe case was before this Court to determine

if the allegations noted above stated a cause of action

under $1983. The claim of the police officers, raised

successfully in the lower courts, was that their actions

were so far beyond any legal authority they possessed

that their actions could not be characterized as having

been taken “under color of” state law.

This Court reviewed previous cases in which the

meaning of the phrase “under color of” state law had

been discussed and defined and attached the same inter-

pretation to that phrase in §1983 as it had to the same

phrase in the criminal sections discussed in Screws v.

United States, 325 U.S. 91 (1945); United States v. Clas-

sic, 313 U.S. 299 (1941); and Williams v. United States,

341 U.S. 97 (1951). “Misuse of power, possessed by

virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law, is

action taken ‘under color of’ state law.” United States

v. Classic, supra at 326. Thus, it was held in Monroe

that the illegality of the officers’ actions did not shield

them from liability under § 1983.

C. The Monroe Dicta.

Negligent conduct was not at issue in Monroe. The

actions of the police officers in Monroe were clearly in-

tentional. The question of whether negligent conduct can

create liability under § 1983 has its birth, however, in a

caveat placed in the plurality opinion in Monroe by Mr.

Justice Douglas. “Section . . . [1983] should be read

against the background of tort liability that makes a man

responsible for the natural consequences of his actions.”

Monroe, supra at 187. The purpose of this language, we

believe, was to distinguish the application of § 1983 from

the more stringent criminal standard of liability announced

in Screws v. United States, supra. That case represented

a challenge to a federal criminal statute (which was com-

panion civil rights legislation to $1983) on grounds of

vagueness. Mr. Justice Douglas, writing for the plurality,

struggled to uphold the statute in question, 7d. at 94-100,

and ultimately saved it from constitutional infirmity by

the following interpretation of the word “willfully” con-

tained in the criminal section. “[MJore is required than

the doing of the act proscribed by the statute... [Cita-

tions omitted] An evil motive to accomplish that which the

statute condemns becomes a constituent element of the

crime.” Screws v. United States, supra at 101. The term

“willfully,” Mr. Justice Douglas noted, “connote[s] more

than an act which is voluntary and intentional.” 7d. at 101.

(Emphasis added.)

The purpose of the often quoted dicta from Monroe

was not to create the “font of tort law” discussed in Paul

v. Davis, supra at 701, but to point out that § 1983 did not

require proof of the additional element of “evil motive”

deemed necessary for conviction under the criminal civil

rights sections. Monroe cannot be read to say that proof

an act was “voluntary or intentional’ is not essential to

liability under § 1983.

In this light, ¢ 1983 should only be read against the

background of tort liability that makes a man responsible

for the natural consequences of his intentional, not negli-

gent, acts. Such an interpretation is consistent with rul-

ings by this Court subsequent to the Monroe decision.

D. The Concept that Negligent Conduct does not

Create a Basis for Liability under § 1983 is

Consistent with Previous Rulings of this Court.

Recent rulings of this Court have consistently allowed

to stand lower court decisions which refused to allow re-

covery against governmental defendants under § 1983 based

upon theories of negligence, and, in those cases in which

lower courts had imposed liability under § 1983 for negli-

gent conduct, this court has consistently resolved such

cases so as to ultimately absolve the governmental de-

fendants of liability.

1. Estelle v. Gamble

In Estelle v. Gamble, 429 U.S. 97 (1976), this Court

considered the level of culpability necessary to create lia-

bility under $1983 in an Eighth Amendment—medical

treatment—context. “[A] complaint that a physician has

been negligent in diagnosing or treating a medical condi-

tion does not state a valid claim of medical mistreatment

under the Eighth Amendment. Medical malpractice does

not become a constitutional violation merely because the

victim is a prisoner.” Jd. at 106.

If the ruling of the Cireuit Court in the petitioner’s

case is allowed to stand, a prisoner’s property will be af-

forded greater protection than his health by § 1983 and

the Fourteenth Amendment. We believe the standard

announced in Estelle v. Gamble, Id., correctly balances con-

stitutional requirements, common law negligence and the

realities of life in a penal institution. This case does not.

Section 1983 had as its purpose, penalizing abuses of

governmental power in an attempt to coerce proper con-

duct by state officials. Section 1983 cannot, by coercion,

prevent simple negligence. By making negligence action-

able under § 1983 this Court would only impose an addi-

tional burden upon the federal court system. Any man-

ner of state neglect, e. g., auto accidents, personal injuries,

road repair, could then be litigated in federal court under

$1983. Paul v. Davis, supra, at 698-699.

2. Negligence Cases Where Liability Was Re-

jected by this Court.

In Procunier v. Navarette, 434 U.S. 555 (1978); and

Baker v. McCollan, 443 U.S. 137 (1979), this Court ac-

cepted cases in which the lower courts had imposed liabil-

ity under §1983 for negligent conduct. In both cases, al-

though the negligence question was not taken up, the gov-

ernmental defendants were absolved from liability, and

two attempts to impose liability under § 1983 on a negli-

gence theory failed.

In Procunier v. Navarette, supra, plaintiffs had suc-

cessfully sought in the courts below to impose liability

under §1983 upon state prison officials for the defend-

ants’ negligent failure to forward plaintiffs’ mail. This

Court declined to resolve the negligence question, but held

that prison officials were entitled to the qualified immunity

described in Scheuer v. Rhodes, 416 U.S. 232 (1974); and

Wood v. Strickland, 420 U.S. 308 (1975), if their actions

could not reasonably have been known at the time they

were taken to have been in violation of the inmate’s clearly

defined constitutional rights, and the defendants were

absolved of liability under that immunity.

In doing so the Court discussed the level or type of

intent which must be established by a plaintiff to defeat

Wood v. Strickland, supra, immunity.

The prison officers were charged with negligent and

inadvertent interference with the mail and the super-

visory personnel with negligent failure to provide

proper training. To the extent that a malicious in-

tent to harm is a ground for denying immunity, that

consideration is clearly not implicated by the negli-

gence claim now before us.

Procunier v. Navarette, supra at 566.

In Baker v. McCollan, supra, this Court again had

before it the negligence question. The plaintiff had been

erroneously incarcerated by the defendant police officers

and held for several days due to their negligent failure to

verify the plaintiff’s identity. The lower court had granted

the plaintiff relief under 41983. In this case the Court

determined the negligence question need not be reached due

to the fact that the plaintiff had failed to establish a viola-

tion of a constitutionally-protected right.

Section 1983 imposes liability for violations of rights

protected by the Constitution, not for violations of

duties of care arising out of tort law. Remedy for the

latter type of injury must be sought in state court

under traditional tort-law principles. Just as “[m]edi-

cal malpractice does not become a constitutional viola-

tion merely because the victim is a prisoner,” Estelle

v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct.

285 (1976), false imprisonment does not become a vio-

lation of the Fourteenth Amendment merely because

the defendant is a state official.

Id. at 146. Other comments of the Court which lend fur-

ther support to the conclusion that negligence does not

create a basis for liability under § 1983 are very appropri-

ate to the facts in this case.

[T]he reckless failure of a police official to stop a

pattern of clearly unconstitutional conduct by his sub-

ordinates could be enjoined under § 1983, here there is

no indication that petitioner was aware, or should

have been aware, either of the likelihood of... [the

alleged misconduct] or of his subordinates’ action in

this case.

Id. at 148. Blackmun, J., concurring.

Here there is no showing the petitioners were aware

of the respondent’s loss or of any unusual risk posed to

his property. The petitioners had established an adequate

system to protect the property of inmates and, through no

intervention of their own, that system failed. Mr. Justice

Stevens, in Baker v. McCollan, supra, seemed to indicate

that an occasional failure of an adequate system need not

create liability for its operators under § 1983. “Certainly,

occasional mistakes may be made by conscientious police

officers operating under the strictest procedures.” Id. at

155 (Stevens, J., dissenting.)

In Martinez v. California, 444 U.S. 277 (1980), this

Court rejected the claim that a state parole officer was

liable under § 1983 for the death of a person at the hands

of a parolee. ‘The plaintiffs alleged the release of the

parolee was negligent. This case was, again, decided on

the basis that no constitutionally-protected right had been

abridged. However, the Court stated, “Although a § 1983

claim has been described as ‘a species of tort liability,’ . . .

[citation omitted], it is perfectly clear that not every in-

jury in which a state official has played some part is ac-

tionable under that statute.” Jd. at 285.

These comments echo the concerns expressed in Paul

v. Davis, swpra, that § 1983 was not intended and should

not be allowed to become “a font of tort law to be super-

imposed upon whatever systems may already be admin-

istered by the States.” Jd. at 424 U.S. 701. In that case

the plaintiff claimed governmental defendants had de-

famed him.

One must bear in mind that of all the actions taken

with respect to inmates daily by prison administrators

there are few, if any, which do not touch upon constitu-

tionally-protected rights and are made under color of

state law. In Bell v. Wolfish, 441 U.S. 520 (1979), this

Court recognized the need to allow prison administrators

freedom to perform their duties without undue interference

by the federal courts. If the negligence of prison personnel

becomes the legitimate object of § 1983 litigation, it is

difficult to estimate the magnitude of the increase in liti-

gation which such a determination would produce, or its

effect upon state prison administrators.

3. Cases Rejecting Negligence as a Basis of

Liability Allowed to Stand.

This Court has consistently allowed to stand decisions

of the Circuit Courts of Appeals that negligent conduct

cannot form the basis of liability under § 1983.

In Bonner v. Coughlin, swpra, note 1, this court was

faced with almost exactly the same facts presented here.

An inmate’s personal property had been lost due to the

alleged negligence of state prison personnel. However,

in that case the Circuit Court denied the inmate relief

under $1983 on a negligence theory.

Monroe v. Pape, supra, also carefully traced the

legislative history of Section 1983. Neither the lan-

guage of the statute nor its history shows that Con-

gress was providing a federal remedy for damages

caused by the simple negligence of a state employee.

In enacting the Civil Rights Act, Congress was obvi-

ously intending to provide a deterrent for the type of

conduct proscribed. If an officer intentionally causes

a property loss, a remedy under Section 1983 might

deter similar misconduct. On the other hand, extend-

ing Section 1983 to cases of simple negligence would

not deter future inadvertence as much as in the case

of intentional or reckless conduct. Consequently, the

majority of Circuits hold that mere negligence does

not state a claim under Section 1983. Otherwise the

federal courts would be inundated with state tort cases

in the absence of Congressional intent to widen federal

jurisdiction so drastically.’

Id. at 545.

2 For list of decisions referred to see, /d. at 545 n. 8.

The only distinguishing feature we can discern between

Bonner v. Coughlin, Id. and the present ease is that in the

present case there exists even less evidence of negligence

(if negligence is established at all).

In Bogard v. Cook, 586 F. 2d 399 (5th Cir. 1978), cert.

denied 444 U.S. 833, a prisoner had suffered various and

severe injuries while an inmate of a state penal institu-

tion. In that case the Circuit Court specifically discussed

this Court’s ruling in Procunier v. Navarette, supra, and

stated:

Wood [v. Strickland, supra] did not definitely estab-

lish the extent to which conduct less egregious than an

affirmative intent to harm—simple negligence, gross

negligence or recklessness—would satisfy the subjee-

tive ‘malicious intent’ requirement. Navarette appears

to fill in that deficiency. The holding in Navarette

squarely establishes that proof of simple negligence

is not enough to pierce an official’s immunity under

§ 1983.

Bogard v. Cook, supra at 411. The Cireuit Court then

concluded :

In light of the Court’s reference to the Restate-

ment, we read the malicious intent prong of the offi-

cial immunity defense to require proof that an official

either actually intended to do harm to the plaintiff, or

took an action which, although not intended to do harm,

was so likely to produce injury that the harm can be

characterized as substantially certain to result. The

spirit of the rule reaches nonfeasance as well as mis-

feasance. It does not insulate an official who, although

not possessed of any actual malice or intent to harm,

is so derelict in his duties that he must be treated as

if he in fact desired the harmful results of his inaction.

At the same time, however, the test requires that a

plaintiff show that the official’s action, although labeled

as “reckless” or “grossly negligent,” falls on the actual

intent side of those terms, rather than on the side of

simple negligence.

Id. at 412. In view of that conclusion the plaintiff was de-

nied recovery under § 1983. This Court declined to consider

the case further.

Thus, on several recent occasions this Court accepted

consideration of cases in which negligence was at issue

and governmental defendants had been held liable. On

each occasion the negligent conduct alleged was found ulti-

mately not to create liability under §1983. In cases in

which the courts below had rejected the concept of § 1983

liability based upon allegations of negligence, however,

those decisions were allowed to stand.

E. Creating Liability Under § 1983 for Negli-

gent Conduct is Inconsistent with a Qualified

Immunity.

1. The Qualified Immunity.

“A public servant who is conscientiously doing his

job to the best of his ability should rarely, if ever, be ex-

posed to the risk of damage liability.’’ Procunier v. Nav-

arette, supra at 569, Stevens, J., dissenting.

In Scheuer v. Rhodes, supra, this Court announced

that officers of the executive branch of government were

entitled to a qualified immunity or “good faith” defense

to liability under § 1983. “It is the existence of reason-

able grounds for the belief formed at the time and in light

of all the circumstances, coupled with good-faith belief,

that affords a basis for qualified immunity of executive

officers for acts performed in the course of official con-

duct.” Jd. at 247-248.

In Wood v. Strickland, supra, the details of that im-

munity were further defined.

[W]e hold that a... [§ 1983 defendant] is not im-

mune from liability for damages under § 1983 if he

knew or reasonably should have known that the action

he took within his sphere of official responsibility

would violate the constitutional rights of the .

[person} affected, or if he took the action with the

malicious intention to cause a deprivation of consti-

tutional rights or other injury.

Id. at 322. In Procunier v. Navarette, supra, this quali-

fied immunity was specifically made applicable to officers

of a state penal system.

It is our belief that the existence of the qualified im-

munity mitigates strongly against the expansion of § 1983

into areas of negligent conduct. See, Bogard v. Cook,

supra.

In Scheuer v. Rhodes, supra, the action in question

was the intentional shooting of students by National

Guardsmen. Wood v. Strickland, supra, involved the ex-

pulsion of two students from school. In both instances

conscious decisions were made and actions taken by the

governmental defendants. In hoth instances, the defend-

ants were found entitled to a qualified immunity which

hinged upon their state of mind at the time the decision

in question was made.

Here the petitioners made no decision and took no

action except to protect inmate property. The petitioners

established a system to care for the property of the in-

mates under their supervision and without their knowl-

edge that system failed in this single instance. The pe-

titioners made no decision to take the respondent’s prop-

erty, nor did they refuse to take action to protect it.

The situation as perceived by the petitioners at the time

required no action, no decision. In the absence of a sit-

uation calling for a decision, how can a defendant in a

§ 1983 action form the thoughts necessary to evaluate his

entitlement to a qualified immunity?

It must be concluded either that 41983 defendants

will now be held responsible for negligent conduct when

intentional but mistaken conduct would shield them from

liability under the qualified immunity, or that uninten-

tional conduct simply does not state a cause of action

under $1983. Equity urges the latter conclusion.

2. The Public Policy.

The public policy which underlies the qualified im-

munity would be done an ultimate disservice if liability

were upheld in this case.

The imposition of monetary costs for mistakes which

were not unreasonable in the light of all the circum-

stances would undoubtedly deter even the most con-

scientious school decisionmaker from exercising his

judgment independently, forcefully, and in a manner

best serving the long-term interest of the school and

the students. The most capable candidates for school

board positions might be deterred from seeking office

if heavy burdens upon their private resources from

monetary liability were a likely prospect during their

tenure.

Wood v. Strickland, Id. at 319-320. If this Court found

such reasoning compelling in a case involving public school

administration, imagine the enhanced weight such logic

brings to bear upon a penal system employee. In penal

situations conceivably every act is taken under color of

state law, and every act bears to one degree or another

upon the constitutional rights of those confined.

We will not achieve the quality penal systems in this

country wé all desire if conscientious penal administra-

tors must fear the imposition of damages, costs and at-

torneys fees every time a property loss is suffered by

an inmate. For if the logic of the district court is ecar-

ried to its logical extreme, every loss which occurs within

a penal institution could arguably be attributed to negli-

gent supervision of subordinate staff. The concerns of

the minority in Wood v. Strickland, supra, seem even more

appropriate when applied to the less desirable but equally

essential business of penal administration. “[O]ne must

wonder whether qualified persons will continue in the de-

sired numbers to volunteer for service in public educa-

tion.” Id. at 331, Powell, J., dissenting.

F. Application of the Law to this Case.

Against this backdrop the rulings of the lower courts

in this case should not be allowed to stand. The district

court held the petitioners liable for allegedly negligent

conduct under § 1983 when neither logic nor the statute

mandate that result. Furthermore, the district court

concluded that the petitioners knew or should have known

that their alleged negligence would violate the respond-

ent’s constitutionally-protected rights. In order to be

denied the qualified immunity made applicable to the pe-

titioners by Procunier v. Navarette, supra, it must be

shown that the constitutional right alleged to have been

violated was “clearly established.’’ The constitutional

right the respondent relies upon is the right to be free

from the negligent deprivation of his property by state

agents. How can it be said that right is clearly estab-

lished in view of the cases discussed above? We do not

believe the alleged constitutional right exists. Even if it

does exist, it has yet to be clearly established, and the

petitioners should not be penalized for not perceiving it.

ITI.

The Record in This Case does not Establish

that the Petitioners were Negligent.

The discovery documents (J. A. 13 and 16) and the

stipulation (Petition for Certiorari, Appendix A) show

only the existence and operation of the system, the very

general responsibility of the petitioners for that system,

the properly documented reception of the respondent’s

property at NPCC and the property’s subsequent loss.

It is important to note what the record before the

district court does wot show. It does not show any per-

sonal involvement of the petitioners in the loss of the

property in question. It does not show that the property

handling system at NPCC was inadequate or had not gen-

erally performed the function of protecting the inmates’

preperty. It indicates no knowledge on the part of the

petitioners that the respondent’s property faced an un-

reasonable risk of loss, or that the property was, in fact,

subject to an unreasonable risk of loss.

The final question is whether the record in this case

establishes that the petitioners’ actions in this case could

properly be found to be negligent.

Negligent conduct may be either: (a) an act which

the actor as a reasonable man should recognize as

involving an unreasonable risk of causing an invasion

of or interest of another, or (b) a failure to do an

act which is necessary for the protection or assist-

ance of another and which the actor is under a duty

to do.

Restatement of the Law (Second), Torts 2d, §289. In

this case the lower courts held the petitioners liable under

§ 1983 for what they perceived as negligent conduct. But

what was that conduct? The district court stated: “The

negligence of the officials in failing to follow their own

policies concerning the distribution of mail resulted in a

loss of personal property for Mr. Taylor.” (J.A. 8, Peti-

tion for Certiorari, Appendix B).

First, it is clear that the petitioners did not person-

ally fail to follow institutional mail procedures. If in

fact those procedures were not complied with, it was by

lower level employees of the institutional hobby center.

In what manner, then, did the petitioners abridge a

duty to the respondent? Their only action was to estab-

lish a system for incoming mail to protect an inmate’s

property; in fact, seeking to avoid a perceived risk of

loss. Surely that action was reasonable.

[T]he care which the actor is required to exercise to

avoid being negligent in the doing of the act is that

which a reasonable man in his position, with his in-

formation and competence, would recognize as neces-

sary to prevent the act from creating an unreason-

able risk of harm to another.

Restatement of the Law, supra, § 298. The record re-

flects no knowledge on the part of the petitioners that

the system they had created represented a risk to the

respondent’s property or that the system was not func-

tioning properly.

The district court in essence concluded that once hav-

ing established a system to protect inmate property, the

petitioners were on notice that should that system fail

they would be automatically liable for the loss. This

conclusion ignores both reality and standard conceptions

of the law of torts. “Certainly, occasional mistakes may

be made by conscientious . . . officers operating under

the strictest procedures.” Baker v. McCollan, supra at

155, Stevens, J., dissenting. “Obviously, no procedures

the defendants might have employed would have provided

an absolute guarantee against excessive and illegal acts

such as pilfering by subordinates. But the Constitution

does not require that of them.” Thorton v. Redman, 435

F. Supp. 876, 881 (D. Del. 1977).

The rulings of the courts below mandate that the pe-

titioners function as insurers of the property of the in-

mates in their charge. That ruling is inappropriate as a

tort concept. It is unacceptable as a basis for liability

under § 1983.

CONCLUSION

The lower courts have, in this case, attempted to ere-

ate a basis for liability under § 1983 which is not consist-

ent with the rulings of this Court, the rulings of their

sister courts, or the public policy which underlies § 1983.

The most predictable results of upholding this new basis

for $1983 liability will be a marked increase in the num-

ber of prisoner lawsuits filed in the federal courts, a

marked increase in the amount of time and money the

federal judiciary will expend contending with these new

filings, and a marked decrease in the morale of those per-

sons conscientiously attempting to perform the thankless

but essential task of maintaining and administering our

states’ penal systems. Funds from finite state corrections

budgets will be drained from projects to upgrade insti-

tutional facilities and personnel and of necessity be ded-

icated to the continual litigation and occasional payment

of minor inmate claims in the federal courts. All this

will occur while completely adequate state remedies suffer

a decline in use.

What attorney, presented with a simple negligence

claim by a state prisoner, would elect to process that claim

through a state claims system for little or no fee when

he could be entitled to a comparatively handsome attor-

ney’s fee if the same case was successfully filed in federal

court under § 1983? The processing of simple tort claims

through the federal courts could prove quite lucrative to

enterprising counsel. This fact, plus the state prisoners’

natural inclination towards the federal courts, will bring

ever increasing numbers of these minor claims to the

federal judiciary’s doorstep while other litigants with

much more substantive claims wait their turn.

In essence, no one would benefit from the rule here

urged by the respondent, and many would be burdened.

The prisoner has his remedy in the state administrative

procedures and tort law. The federal courts, frankly,

have better things to do with their time.

‘At some point the benefit of an additional safe-

guard to the individual affected . . . and to society in

terms of increased assurance that the action is just, may

be outweighed by the cost.” Mathews v. Eldridge, 424 U.

S. 319, 348 (1976).

We can conceive of no circumstance in which purely

negligent conduct need state a claim under § 1983 and

we urge this Court to so hold. However, we are aware

of this Court’s desire to carefully consider each situation

as it arises.

[T]he question whether an allegation of simple neg-

ligence 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 constitution-

al violations which might be the subject of a § 1983

action.

Baker v. McCollan, supra at 139-140

Therefore, we would urge this Court, if deemed nec-

essary simply to rule that at least insofar as property

loss under the Fifth and Fourteenth Amendments is con-

cerned, simple negligence does not give rise to a claim

under § 1983, and reverse the decision below.

Respectfully submitted,

ROBERT PARRATT and

FRANCIS LUGENBILL, Petitioners,

By PAUL L. DOUGLAS

Attorney General of Nebraska

By J. KIRK BROWN

Assistant Attorney General

Attorneys for Petitioners

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