Parratt v. Taylor

PETITIONER:Parratt
RESPONDENT:Taylor
LOCATION:Indiana State Employment Security Division

DOCKET NO.: 79-1734
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 451 US 527 (1981)
ARGUED: Mar 02, 1981
DECIDED: May 18, 1981

ADVOCATES:
J. Kirk Brown – on behalf of the Petitioners
Kevin Colleran – on behalf of the Respondent, appointed by this Court

Facts of the case

Question

Audio Transcription for Oral Argument – March 02, 1981 in Parratt v. Taylor

Warren E. Burger:

We’ll hear arguments next in Parratt and Lugenbill v. Taylor.

Mr. Brown, I think you may proceed when you are ready.

J. Kirk Brown:

Mr. Chief Justice and may it please the Court:

In my argument today I will address the petitioners, Mr. Robert Parratt and Mr. Francis Lugenbill, as the defendants.

I will refer to Mr. Taylor as the plaintiff.

These are the positions they originally occupied in this action.

As a bit of factual background, in April, 1975, the plaintiff was housed in a penal institution in the State of Nebraska of which Mr. Parratt was the warden and Mr. Lugenbill was the supervisor of the hobby counter, which is an internal organism which provides hobby goods for inmates at that institution.

The plaintiff ordered hobby material while he was a prisoner; money was deducted from his inmate account to pay the vendor for those goods.

Before the goods arrived the plaintiff violated the disciplinary rule and was placed in disciplinary segregation.

When the hobby materials arrived the plaintiff was still on disciplinary segregation and was not entitled to have them at that point in time.

The materials were signed into the institution by a Mr. Kosta and a Mr. Gero, as a part of their clerical duties at the hobby counter, and the material was held at the hobby counter for the plaintiff.

In June, 1975–

Harry A. Blackmun:

You say as a part of their clerical duties.

Doesn’t your opposition claim that that was against prison regulations?

J. Kirk Brown:

–They do.

And I–

Harry A. Blackmun:

Do you agree?

J. Kirk Brown:

–Do I agree that it was against prison regulations?

No, I do not.

I think if you look at the answers to the interrogatories filed by defendant Parratt and defendant Lugenbill, they indicate that those signatures were affixed as part of their clerical duties.

I admit that this poses some problems at this point in time, particularly in view of the fact that this case was resolved against us on a motion for summary judgment.

But, in our opinion, there does appear to be some question with regard to that particular aspect of the case.

In June, 1975, the plaintiff was released from disciplinary segregation and requested that the hobby materials be provided him.

A search was made for them and they could not be found.

In October of 1975 the plaintiff filed his first complaint with the U.S. District Court and the District Court did not file the complaint and instructed him to return and seek a remedy with the Department of Correctional Services.

In November of ’75 the plaintiff filed a second complaint.

This complaint was filed but dismissed prior to issuance of summons on the grounds that it was frivolous.

In March, 1976, a third complaint was filed and summons was issued.

In April, 1977, counsel was appointed.

In June, 1978, the plaintiff filed his motion for summary judgment, and in October of ’78 a judgment was granted the plaintiff against these defendants.

J. Kirk Brown:

The plaintiff during this entire course of conduct never filed a claim under the Nebraska Tort Claims Act for return of the value of these materials, which, it is unquestioned, were lost at the institution.

I would like to address two questions which are raised by our brief today in oral argument.

First of all, whether the existence of a state created remedy for property loss caused by the negligence of state employees provides adequate legal process under the Fourteenth Amendment Due Process Clause.

Second, I would like to discuss whether simple negligence in the context of a property loss case can create personal liability under Section 1983.

Mr. Justice Douglas in Monroe v. Pape set out three basic purposes for the enactment of Section 1983.

Number one was to override unconstitutional state laws.

Number two was to provide a remedy where state laws were inadequate.

Number three was to provide a remedy where an adequate state law was not in fact available to a plaintiff.

None of these goals are furthered by imposing liability on these defendants.

There is no state law question presented, and there is no showing on this record that an adequate state remedy is not in fact available to a plaintiff under these circumstances.

Byron R. White:

How would your argument change if the inmate said, you’ve lost my property, and the answer is, yes, we have.

We did it negligently, but we lost it.

And he says, well, aren’t you going to either replace it or pay me for it?

And they say, no, absolutely not.

Do I have any remedy?

Not that we know of.

J. Kirk Brown:

If that were the case, then I think what you’ve got is a problem of denying the inmate, if in fact that was within the power of the people, denying him the access to his remedy.

Byron R. White:

Yes, it’s no longer just a piece of negligence, is it?

J. Kirk Brown:

No.

I think you have to characterize the case entirely different.

One way, it would be similar to, at that point, infringing on that inmate’s right to access to the courts.

Byron R. White:

Well, suppose Texas law just hasn’t got any, there isn’t any… or Nebraska law, there just isn’t any remedy, internal remedy under the state law.

The prison officials are perfectly correct.

We just… there just isn’t any remedy as far as we know of.

And we’re not going to pay you, and we’re not going to replace the property.

But that’s no longer negligence.

That’s a willful deprivation of his property, isn’t it?

Exactly.

They either are going to give him a remedy or it’s going to be that, isn’t it?

Yes.

J. Kirk Brown:

Well, but I think the thing that you would… I guess I would urge that type of situation be evaluated in the context not so much of imposing personal liability on these persons.

If you have a person administering an institution and, not by his personal participation, but certainly property is lost on occasion in these institutions.

I don’t know that you have a situation where the inmate comes to him and says, I want to be paid, you lost my property.

And the warden says, in this case, yes, I know we lost your property.

I know the institution lost your property.

I personally will not pay you.

And the institution does not have the authority to pay you.

It seems to me at that point you have a substantial grounds for some interpretation in a declaratory or injunctive sense as to whether or not the inmate has been denied by the absence of a state remedy due process with respect to that.

Byron R. White:

At least you wouldn’t be making the same argument here if that had happened.

You wouldn’t be making… what would you think about a 1983 action on those very facts which you just?

J. Kirk Brown:

On those facts I would move directly to my second argument regarding the basis of the negligence.

But it does seem–

Byron R. White:

But why?

It isn’t negligence any longer.

They just say, we’re not going to pay you, We’ve lost your property but we’re not going to replace it or we aren’t going to pay you.

As far as we know you haven’t got any remedy.

Even though we concede that we wrongfully deprived you of it.

That is, deprived you of it through our negligence.

J. Kirk Brown:

–I guess I’ve lost the trail here somehow.

Byron R. White:

I’m just suggesting it is no longer just a negligence question.

J. Kirk Brown:

No, I think that’s correct.

I think you have to–

Byron R. White:

Then it wouldn’t do you any good to move on to your second argument.

J. Kirk Brown:

–Well, if you’ve got the problem of what is protected… and I think you have to look at this in the context, it seems to me, of personal liability, and just what exactly the authority of these defendants is with respect to repayment of these types of losses.

Our position basically is that the Constitution, the Fourteenth Amendment, does not prohibit property deprivations.

It only requires that a legal process be available when deprivations occurred.

It is the process and not the property which is constitutionally protected and constitutionally significant.

John Paul Stevens:

Mr. Brown, I’m not clear on your position with respect to whether or not there is a process in Nebraska.

J. Kirk Brown:

Our position is–

John Paul Stevens:

First you imply that they failed to make a claim under the Nebraska Claims Act and then you said the burden is on them to demonstrate the absence of the Claims Act, I guess.

John Paul Stevens:

Well, what is your position on this, whether or not there is a state remedy?

J. Kirk Brown:

–Our position is that a state remedy exists and that if the plaintiff is to make out a case that he has been denied property without due process of law, he not only needs to show that he has lost his property but that by some mechanism he has been denied due process of law, that that loss has occurred to him without some type of adequate process, whatever process might be found to be due him under those circumstances.

John Paul Stevens:

Well, is it… as a matter of fact, I guess, you should be the expert on what Nebraska law is, here.

Is there a state procedure by which he could recover the monetary equivalent of the value of his hobby?

J. Kirk Brown:

The Nebraska State Tort Claims Act regularly considers and regularly pays, where deemed appropriate, claims for property lost, property damage, this type of thing, of the inmates of our state institutions.

Potter Stewart:

I see.

And the inmate has to bring an action in Court?

J. Kirk Brown:

The inmate initially files a claim with the State Tort Claims Board.

That claim is administratively–

Potter Stewart:

That’s your administrative agency.

J. Kirk Brown:

–is administratively reviewed.

The claim at that point is either determined, the department against whom it occurred, and then, if the inmate is not satisfied with the result of that, he may appeal that directly to our district court.

Potter Stewart:

And that is… but that is an appeal rather than a trial, de novo?

J. Kirk Brown:

Well, the trial would go de novo.

There is no record created in front of the Board.

This is simply an–

Potter Stewart:

So it’s not subject to review–

J. Kirk Brown:

–an administrative consideration of whether the–

Potter Stewart:

–First?

And then, there’s an administrative consideration first.

And then if the inmate loses he goes to court as a plaintiff?

J. Kirk Brown:

–That’s correct.

Potter Stewart:

And it’s not a reviewing court?

J. Kirk Brown:

No.

Potter Stewart:

It’s a trial court.

Jury trial?

J. Kirk Brown:

The administrative review is simply–

Potter Stewart:

A necessary provision preceding–

J. Kirk Brown:

–a jurisdictional step to get to the district court.

William J. Brennan, Jr.:

–What does he have to prove in administrative?

J. Kirk Brown:

At the administrative level I think simply he would indicate the circumstances under which his property was lost and the Department of Correctional Services would have the option in this case of coming forward and providing their side of the story.

Quite frankly, in this case, I don’t see that the Department would have ever taken the position, and very often they do not, that there was no reason not to compensate this man for his loss.

The difficulty arises to a certain extent in that our Claims Board is the only board funded in the State of Nebraska to pay this type of claim.

The Department of Correctional Services is not funded.

These are considered unappropriated expenses and therefore the mechanism of the Claims Board is involved.

William J. Brennan, Jr.:

And Mr. Brown, if he loses and has to go to district court, number one, does he get a jury trial?

J. Kirk Brown:

I don’t believe he does; no.

William J. Brennan, Jr.:

And what does he have to prove in district court to recover?

J. Kirk Brown:

In district court he would have to prove that there was negligence on the part of the State of Nebraska, or one of the employees of the State of Nebraska.

Simple negligence would suffice at that stage of the proceedings.

Potter Stewart:

I suppose res ipsa loquitur would not be far away, would it?

I mean, the very fact it was lost, it was sent to him, and lost?

J. Kirk Brown:

Right.

Under these facts I don’t anticipate that there would ever have been a dispute on that.

Our dispute is with regard to the proper forum to seek the redress and not with regard to Mr. Taylor’s entitlement to reimbursement.

Potter Stewart:

And would negligence be an issue in the administrative proceeding as well?

J. Kirk Brown:

Actually, their authority there is even broader than that.

There wouldn’t even have to be–

Potter Stewart:

They could give him the money without–

J. Kirk Brown:

–If they felt that there was some inequity involved, even less than negligence, they certainly would have the authority to reimburse him at that point in time.

Byron R. White:

–What constitutional deprivation is alleged in this case?

J. Kirk Brown:

It was claimed that he was denied his property without due process of law.

Byron R. White:

Contrary to the obligation of the State not to take his property without compensating him, is that it?

J. Kirk Brown:

I would answer–

Byron R. White:

I mean, is that the way you understand it?

J. Kirk Brown:

–That’s my understanding of it; yes.

William H. Rehnquist:

But there was in effect an eminent domain case rather than a denial of due process?

They are different.

J. Kirk Brown:

Well, I guess in my evaluation of this, we aren’t talking about an eminent domain case, because that is where the element of intent comes in.

And under these circumstances, where there is no intentional taking, there is certainly no opportunity to provide this man a pre loss process, whatever would be determined to be appropriate in that taking, as in an eminent domain case where you could go in and establish the value before the property is taken.

J. Kirk Brown:

That opportunity simply isn’t presented unless you have at least, I would guess, at least a reckless or a wanton and willful… you can argue in that span whether or not there is some intellectual functioning–

Byron R. White:

But your answer to his claim consistently has been and it still is here that there is no denial of due process as long as the State has a suitable procedure to compensate him.

J. Kirk Brown:

–That’s correct.

Byron R. White:

So you’re really saying that as long as we compensate him or replace it, there’s been no denial of due process.

J. Kirk Brown:

That’s our position; yes.

Potter Stewart:

And that would be true whether the claim were a deprivation of property without due process of law, or a taking of property without compensation.

J. Kirk Brown:

That’s correct.

Thurgood Marshall:

But here he seeks also $1,000 damages and also $1,000 punitive damages.

J. Kirk Brown:

That’s correct.

Thurgood Marshall:

Which he couldn’t get in the claims court.

J. Kirk Brown:

No, he could not get that in the claims court.

I guess our position would be, it seems to us under a 1983 analysis, those damages run as a result of the constitutional violation, and we are saying he never reached that threshold.

Thurgood Marshall:

Do you deny that somebody deprived somebody of $23 and you would fine him $2,000 for it?

It’s no problem?

J. Kirk Brown:

That is, from a practical standpoint that’s one of our serious concerns.

Even if as the 8th Circuit, what contact I had with them, their concern was, why simply didn’t we settle this case?

Why didn’t we get it out of their hair?

Our position is, even if we took the position… or if we are finally informed that this type of thing does establish a constitutional violation, we are still faced with the substantial burden, if one of these cases is filed in the district court, and we immediately go in and say, yes, we lost the property.

We now understand that that constitutes a violation of the Fourteenth Amendment, we’re going to have 1988 hanging over our head, and every $23 case is going to cost us $200 or $300 or $400 if we get there five minutes after the filing hits the table.

This, from a practical standpoint, not from a legal standpoint, it poses a substantial problem for the State.

And that is one of the underlying problems that we urge here.

I don’t think it’s a basis for making the decision, but it certainly is a practical problem that we are faced with from the position of prison administration.

John Paul Stevens:

I take it, Mr. Brown, there are no provisions for fees under the state claimant procedure?

That’s the difference?

J. Kirk Brown:

Basically it proceeds simply as any other tort, state tort remedy.

Potter Stewart:

Well, then, as a practical matter, unless he can get free legal representation, he’s not going to bring a lawsuit.

He’s not even going to bring an administrative proceeding, because the fee would be more than $22.

I take it they proceed pro se normally on a proceeding like that?

J. Kirk Brown:

He certainly has the opportunity to proceed pro se.

John Paul Stevens:

But may I ask about the adequate… you’re saying that’s an adequate procedure, basically?

John Paul Stevens:

Two or three years ago we had a case involving the procedure that must be followed in shutting off electricity, when the billing procedure is bad, by a utility.

And the Court held, in effect, you had to advise the person of his rights in order to have the process adequate.

Is there any procedure for advising the inmates as to the existence of this procedure?

J. Kirk Brown:

At the present time there were.

I think if you look at the record, if you look at Exhibit B on the plaintiff’s complaint, it indicates that at least in January, 1976, that he was aware of this state procedure.

Now, I do not know and the record does not indicate how he came to be aware, but the second exhibit to his complaint is, I need the numbers on my checks so I can file my state claim.

Apparently he was aware of it.

Now, why at that point having been provided that information he did not go forward and file the claim, that’s an answer I don’t have.

But… and I do know from my personal contact with the system in the last two years when I’ve worked with it, that they are regularly informed, that if they have a problem like this, this is the manner in which they can seek redress, is to proceed through that type of mechanism.

Lewis F. Powell, Jr.:

General Brown, does Nebraska still have the common law of torts practised in your courts?

J. Kirk Brown:

I believe they do; yes.

Lewis F. Powell, Jr.:

Would a common law tort action and a lien against the individuals alleged to have been responsible for this loss, rather than against the State?

J. Kirk Brown:

I guess that would be another portion of our argument.

On these particular facts I have some serious questions as to whether liability could have been established under a basic tort theory.

Lewis F. Powell, Jr.:

Suppose one of the prison guards, for example, had an automobile accident resulting from his negligence when he was taking a prisoner to and from a court for hearing.

Could the prisoner sue the guard in Nebraska under the common law tort doctrine?

J. Kirk Brown:

I guess–

Lewis F. Powell, Jr.:

Why not?

J. Kirk Brown:

–I don’t have the specific–

Lewis F. Powell, Jr.:

Could you bring a damage suit if you were riding in my automobile and by gross negligence I caused an accident?

We can in Virginia.

Can’t you do that in Nebraska?

J. Kirk Brown:

–I would assume so.

Lewis F. Powell, Jr.:

Well, what would the difference be, if a prisoner is riding in a prison vehicle to the court and the driver by gross negligence has an accident that results in injury to the prisoner?

Couldn’t he bring a tort action under state law?

J. Kirk Brown:

I guess in the–

Lewis F. Powell, Jr.:

Against the driver?

What’s the difference between you and the prisoner, in those circumstances?

J. Kirk Brown:

–The difference, I suspect, basically, between the driver, between a correctional officer operating that vehicle, is more practical than legal, though I am not certain whether I can answer your question or not, because I have some concern as to whether or not the tort claim procedure might forestall that type of action against someone functioning as a state employee.

I’m simply not certain on that.

Potter Stewart:

You think as a matter of state law it’s possible that the injured party might be relegated to the administrative proceeding?

J. Kirk Brown:

I simply don’t have an answer but I certainly… I guess from the State defense standpoint, that would be an issue I would certainly want to look into before I could give you a definite answer on that.

Potter Stewart:

You say he has one remedy or the other, though?

J. Kirk Brown:

There may be an election also.

I simply–

Potter Stewart:

But he has some kind of remedy, you will concede that?

J. Kirk Brown:

–Certainly.

Certainly.

He’s not forestalled from any remedy whatsoever.

Potter Stewart:

To compensate him for his personal injuries?

J. Kirk Brown:

Right.

Moving on to the negligence question, we think it must be viewed in the narrow context of this case, and that is whether Section 1983 prohibits the unintentional deprivation of property by persons acting under color of state law, and whether such acts would create personal liability?

We do not believe that the language of Section 1983, cases of this Court interpreting Section 1983, or the logic, purpose and public policy of that Act, support liability in this instance.

There is no evidence that these defendants directly caused or personally participated in the loss of this property Rizzo v. Goode rejected liability without an affirmative participation by the defendants even in an equitable action.

And I think we have to realize that the burden of proof, what needs to be proved to obtain equitable or injunctive release, or declaratory relief, under this Act, is not as stringent as should be or what has been imposed to obtain personal liability.

William H. Rehnquist:

Parratt was the superintendent of the correctional facility?

J. Kirk Brown:

Yes, chief executive officer; technically the warden of that particular institution.

Justice Blackmun in Baker v. McCollan said that that reckless failure to stop a pattern of clearly unconstitutional conduct by subordinates could be enjoined under Section 1983, but in that case there was no evidence that defendants knew that there was a problem and that liability was then rejected.

We think we have a similar situation here.

There’s no indication on this record that there was a general failure with the system, and there’s no question as to whether these men particularly participated in it.

So I think we’ve got a problem there.

Lewis F. Powell, Jr.:

Mr. Brown, if a prison guard stole an article of personal property from an inmate, what remedy would he have?

J. Kirk Brown:

What remedy would the inmate have?

Lewis F. Powell, Jr.:

Yes.

The guard had stolen an item of personal property from the inmate’s… cell.

Let’s say he took, if you allow transistor radios, that he took his radio or took three books or whatever, stole them.

J. Kirk Brown:

Well, I think, first of all, what you have is an entirely different case than you have here.

What you’re dealing with is an intentional act–

Lewis F. Powell, Jr.:

Right.

J. Kirk Brown:

–and it’s not our position that that type of act implicates the same problems we see with negligence.

Warren E. Burger:

Well, does Nebraska have an action for conversion or the equivalent of the old common law conversion?

Wouldn’t that be a remedy against him?

J. Kirk Brown:

I would think it would be, not to mention… this wouldn’t aid… would not necessarily aid the inmate, but certainly we would, I think that would fall under our criminal laws as well.

But we’re not talking about intentional theft, we aren’t talking even about a situation where… what now?

Warren E. Burger:

You seem to be conceding that, in my brother Powell’s example, that would be a constitutional deprivation?

J. Kirk Brown:

I’m basically saying that it presents a much closer case because we’re dealing with an intentional act.

I guess I’m not–

John Paul Stevens:

Well, why is it a closer case under your first argument?

I don’t think it is.

You’d still say, there is this remedy in the claim procedure–

J. Kirk Brown:

–Certainly.

That’s correct under the first argument, but I guess our position is that our second argument could form an independent basis, even in the absence… certainly not all states have established the types of procedures we’re talking about here.

John Paul Stevens:

–But your second argument seems to me to blend two different thoughts.

You on the one hand seem to be arguing, well, they really don’t have any proof of negligence.

And alternatively you seem to be arguing, even if there were negligence, that 1983 would not provide a remedy.

I’m not quite sure whether you’re arguing both; I think you are.

J. Kirk Brown:

Well, okay, under these facts, I think I’m placed in a rather awkward position.

Our position, basically, is that even if there was proof of negligence, that it does not constitute a violation of Section 1983.

What we argued in our brief is that we don’t even believe, on this record, there is evidence of negligence.

But I think those are two distinct questions too.

If the Court would permit me–

Warren E. Burger:

Are you prepared to assume negligence for your 1983 argument?

J. Kirk Brown:

–For those purposes, yes.

I’d like, if I could, to reserve the rest of my time.

Warren E. Burger:

Mr. Colleran.

Kevin Colleran:

Mr. Chief Justice and may it please the Court:

I am court appointed counsel for the respondent in this case, Bert Taylor, Jr. The respondent cannot concur with the statement of facts as given this morning by the Attorney General’s office.

I am somewhat shocked to find at this late date that the Attorney General’s office is now taking the position that the conduct involved was not in violation of the regulations of the institution.

I think that they concede as much in their brief.

The facts in this case, I think, can be–

Warren E. Burger:

What difference would it make for the purposes of your case if you point that out?

Kevin Colleran:

–The facts, Your Honor?

Yes.

Kevin Colleran:

If they weren’t in violation?

Warren E. Burger:

If it wasn’t intentional?

Kevin Colleran:

Well, I think, first of all, there is some evidence of intent.

But aside from that, I think that, I think the key is, Your Honor, is that they acted… there was an established institutional procedure which they violated, and I suspect that if there had been no institutional procedures and if they had simply left Mr. Taylor’s property to the wind or whoever grabbed it when it came to the institution, that there would be no difference.

But I’m just saying that I think the facts are different than as related by the Attorney General’s office this morning, and they’re considerably different.

I think the Attorney General’s represented… well, as I stated, I think that they can be broken into three different categories, the first being the institutional procedure that was in effect at all times pertinent hereto, and this was set forth in the stipulated facts of the grievance supervisor or officer prepared by the Attorney General’s office, at his suggestion, at a hearing on a motion for default judgment in this particular case, filed on behalf of the respondent for their failure to answer interrogatories.

And the grievance procedure was, as stipulated to, that normal procedure when a package is received at the institution addressed to an inmate, at the central mail room, it is either that the package is delivered to the inmate’s cell where he signs the package receipt, or the inmate is notified to pick the package up at the hobby center and to personally receipt for it.

And then it goes on to say that deviations from this practice are only made in exceptional circumstances, and there is no record of there being any exceptional circumstance in this case, which seems to me to be an entirely different case from that as represented to the Court this morning by the Attorney General’s office.

John Paul Stevens:

It’s an exceptional circumstance because he was in isolation.

Kevin Colleran:

Well, there again, Your Honor, the Attorney General’s office has fabricated something out of the record.

There was nothing in the record to indicate that he was in deadlock or anything else.

He was transferred to the adjustment center.

The reason he was transferred there is not in the record, and I know for a fact because I have represented Mr. Taylor since 1973, in this and another litigation, that Mr. Taylor spent time in the adjustment center at his own choosing from time to time because he felt the need to be in the adjustment center for security reasons.

There is nothing, absolutely nothing in the record that would indicate that he was there because of a disciplinary problem that–

John Paul Stevens:

It doesn’t matter why, but the fact that he was in the adjustment center would be an unusual circumstance and probably explains why he wasn’t available to sign for the package.

Kevin Colleran:

–I don’t think so, Your Honor, not on the facts of this case, because the facts of this case, the supervisor’s indicated that the fact that he was in the adjustment center was not an exceptional circumstance and did not justify the conduct in this case.

Potter Stewart:

In the present posture of the case, at least, we can assume negligence–

Kevin Colleran:

All right.

Potter Stewart:

–On the part of the defendants.

Kevin Colleran:

I think there was.

Potter Stewart:

At least for the purpose of the first two issues, that have been the only issues argued here.

Kevin Colleran:

Okay.

Well,–

William H. Rehnquist:

Can we assume negligence on a… resolved on a motion for summary judgment?

Kevin Colleran:

–Yes, I think we can, Judge.

I think that… Your Honor… in this particular case, particularly, I think that we have a situation where the property comes to the institution after he has paid for it and ordered it in accordance with institutional procedures.

It is taken into custody when it comes to the mail room to be examined, and when he goes to get the property later on it’s not there.

Kevin Colleran:

And the reason that it’s not there is because the institutional procedures were violated, and the reason that the institutional procedures were violated are set forth in the answers to interrogatories filed on October 12, 1976, by the warden and by the supervisor of the hobby center.

They set forth an institutional procedure that is totally foreign to what actually should have been going on out there.

Potter Stewart:

Well, now we’re arguing about whether or not there was or was not negligence as–

Kevin Colleran:

Yes.

Potter Stewart:

–Quite properly, in response to my brother Rehnquist’s question.

But it seemed to me that the Attorney General in his first two arguments that he made orally here, the only two that he made orally, both assume negligence.

Now, in his brief, there also is contested whether, the question of whether or not there was or was not negligence.

I don’t believe we took this case to decide that.

Kevin Colleran:

All right.

Well, I didn’t understand the Attorney General’s office to be that.

I thought he was saying in effect that they were in conformance with institutional procedures and therefore were not negligent.

But assuming, if we can assume, at least, some negligence… and I think that the conduct on the behalf of the petitioners goes far further than just simple negligence, if we can categorize it.

I think that to suggest in this particular case that Mr. Taylor should have proceeded under the State Tort Claims Act in Nebraska, frankly I find a little bit shocking.

Mr. Taylor was represented by himself from the time that he first filed this claim until April, mid April of–

Thurgood Marshall:

I thought you said you’d represented him since 19-seventy-something?

Kevin Colleran:

–On another matter, Your Honor.

I did not represent him on this particular case until I was appointed in April of 1977.

Thurgood Marshall:

He had retained you?

Kevin Colleran:

No, no.

I was court appointed in that case as well.

Thurgood Marshall:

But you said you kept talking to him.

Kevin Colleran:

He had a particular fondness–

Thurgood Marshall:

About anytime he would go to this separate place.

Kevin Colleran:

–Well, I was going to get to that right now, Your Honor.

Thurgood Marshall:

What do you mean… I don’t see how you can say absolutely that he didn’t have counsel?

Kevin Colleran:

I’m saying that I represented Mr. Taylor on an earlier action, at the institution.

I was not appointed and was totally unaware of this case until April, 1977, two years after the taking of this property.

Thurgood Marshall:

But knew how to get in touch with you, didn’t he?

Kevin Colleran:

No, he did not; not about this matter.

He never did.

Thurgood Marshall:

Well, then you want to withdraw your statement that you represented him since 1970-something?

Kevin Colleran:

No, I do not want to withdraw my… I was simply–

Thurgood Marshall:

I’m disappointed.

Kevin Colleran:

–I was simply pointing out, Your Honor, that I represented him since 1973 and I was aware of the fact that he was sent to the adjustment center for reasons other than disciplinary reasons in response to any inquiry by Justice Stevens.

Thurgood Marshall:

During the same time that this incident occurred?

Kevin Colleran:

Yes, but I was totally unaware of this, is what I’m saying.

I was not advised of it until April, 1977, when I was appointed by the Court to represent him in this case.

That’s the first time I had knowledge that he has lost his property out there.

See, he had been transferred to the State of Arizona.

He was serving time in other institutions other than the State of Nebraska, so I did not have day to day, week to week, or even month to month contact with him.

But what I’m saying is that at the time I was appointed, there’s a two year statute of limitations under the Nebraska Tort Claims Act.

John Paul Stevens:

Before you get to the time you were appointed, if I may, because we got diverted a little bit in the response to my question about the Nebraska claims forum, you said he was not represented, and it’s kind of fanciful to assume that he’d know about the procedure.

Your opponent has called our attention to Exhibit B, which is dated January 8, 1976, in which he specifically makes reference to information he needs for filing the small claims form.

Kevin Colleran:

Correct.

That’s an entirely different procedure than the Nebraska Tort Claims Act.

There is also a small claims court in the State of Nebraska and he tried to pursue the small claims court, which is the county court and the municipal court for the City of Lincoln.

I tried to track down records, and it’s not a part of this record, but I tried to pursue this, and there is no record either in the municipal court or the county court over there, but that that is an entirely different proceeding than the State Tort Claims Act which provides that he must first proceed under the administrative provisions of the Act.

So, and to suggest–

John Paul Stevens:

Why didn’t he do that?

Is it that he… are you suggesting that the inmates don’t know that there is such a remedy?

Kevin Colleran:

–I’m sorry, Your Honor?

I didn’t hear.

John Paul Stevens:

Why did he not do that?

Does the record tell us anything about that?

Kevin Colleran:

Why he did not pursue the Tort Claims Act?

John Paul Stevens:

Yes.

It seems to me, if he can get $32 back by filing an administrative proceeding, surely that’s better and more desirable than coming all the way up here?

Kevin Colleran:

Well–

Warren E. Burger:

If not for him, at least for a lot of other people.

Kevin Colleran:

–Well, I think that there are several deficiencies with the Nebraska Tort Claims Act, some of which have been alluded to by this Court today.

Kevin Colleran:

The first, of course, is that there is no right to a trial by jury.

John Paul Stevens:

Well, but do you need a trial by jury in this matter?

Kevin Colleran:

Well, but the Attorney General–

John Paul Stevens:

I’m talking about this specific case.

What is there to explain to us, if there in fact is the remedy that your opponent has represented exists, how is it that he wouldn’t pursue it?

Is it just the fact that there are no fees available for counsel?

Kevin Colleran:

–Oh, I think that’s part of it.

I think, first of all, that he did try to pursue the grievance procedures out at the institution and was denied those.

And I sort of assumed that he was… I can’t speak for him, but I assume he was probably getting a little frustrated with the system and he thought he could get relief in federal court.

But there is no provision for attorney’s fees and there is no provision for the appointment of counsel, which means in every instance for Mr. Taylor and those similarly situated, he’s going to be going it alone against the considerable resources of the State of Nebraska.

William H. Rehnquist:

Well, Mr. Colleran, what about someone who is not a prisoner, but who suffers a $25 loss at the hands of the state?

Could he proceed pro se in the small claims court in Lincoln against the state official for a judgment of $25?

Kevin Colleran:

Yes, I think he could, Your Honor.

Byron R. White:

He wouldn’t necessarily have to sue the State either, would he?

Just sue the official?

Kevin Colleran:

Well, I think… yes, I think he has sued… well, he could sue the officials in this particular case as well.

Byron R. White:

Well, do you think you could collect from them?

Did you sue them in their official capacity?

Kevin Colleran:

We sued them both individually and in their official capacity.

Byron R. White:

So there isn’t any… suppose this case had gone to trial and you get a judgment against the officials, can you collect it from them individually?

Kevin Colleran:

I think that… you mean under the small claims court?

Byron R. White:

Yes.

Kevin Colleran:

I assume that we could execute.

In this case, however, he was denied any relief under the small claims court.

Byron R. White:

I understand that.

Was he in fact denied relief in the small claims court?

Kevin Colleran:

Yes, according… again, this is not part of the record, but in talking with Mr. Taylor by long distance phone, he told me he was summarily dismissed out.

He tried it twice, in fact, and was summarily–

Byron R. White:

It’s all in the record?

Kevin Colleran:

–No, it is not.

Thurgood Marshall:

But it is in the record that the attorney’s fee was $792.54.

Kevin Colleran:

That was stipulated to by the Attorney General’s office.

And that, I would like to also indicate, that we did not seek punitive damages in this case of $1,000.

We abandoned that claim.

The only thing we were seeking was our compensatory damages in the amount of $23.50.

Thurgood Marshall:

It is in the complaint.

Kevin Colleran:

It is in the complaint, but we’ve abandoned that.

Thurgood Marshall:

But you didn’t abandon $792?

Kevin Colleran:

No, I did not, Your Honor.

I think that under the Civil Rights Act I’m entitled to an attorney’s fee.

The prevailing party is entitled to attorney’s fees.

Thurgood Marshall:

Which you couldn’t get under the other one.

Kevin Colleran:

Which we could not get, and I think that that is a very important provision of this Act, because, again, Mr. Taylor would have been forced to proceed pro se under the State Tort Claims Act.

Thurgood Marshall:

Well, he only got the $25 back.

That’s all he got was $25, right?

Kevin Colleran:

If he’d been successful; yes, that’s correct.

Thurgood Marshall:

Well, I mean, his judgment, that’s all he got?

He got the same thing he would have gotten through the administrative machinery.

Didn’t he?

Kevin Colleran:

No, I disagree with that.

Thurgood Marshall:

Well, what else did he get?

Kevin Colleran:

I don’t know that the administrative procedure would have provided him anything at all.

It is administered by the Attorney General’s office.

Thurgood Marshall:

Well, it could have given it.

Kevin Colleran:

Well, theoretically, the remedy is possible.

Thurgood Marshall:

Well, haven’t some people won when… you didn’t–

Kevin Colleran:

I’m sorry, Your Honor?

Thurgood Marshall:

–The only difference between what he could have gotten under the administrative machinery and what he did get here was zero.

Is that correct?

Kevin Colleran:

Well, that’s a considerable difference, I think, to my client.

Thurgood Marshall:

Zero?

He didn’t get anything more.

Kevin Colleran:

I’m afraid I don’t understand Your Honor’s question.

Thurgood Marshall:

Well, the answer is that the only additional money obtained in this action as to… contrasted to what he could have gotten in the other action was counsel’s fees.

That’s my question.

Kevin Colleran:

Oh, I see.

Well, yes, I think that’s probably correct.

But, again, you know, this Court has held, I think, since Monroe v. Pape that Section 1983 is supposedly to be an addition to a state remedy that a state might have provided.

And I don’t think that we can assume on this record that the Administrative Procedures Act of the Tort Claims Act would have been available, or a successful remedy to him.

It is a theoretical remedy, much the same as was discussed in Monroe and in a line of cases since that time.

And I think to suggest, if we take Mr. Taylor and say, all right, for a Fourteenth Amendment case you have to go under the State Tort Claims Act, we’re putting everybody under the State Tort Claims Act, and it seems to me the end of Section 1983 for Fourteenth Amendment cases.

John Paul Stevens:

In Fourteenth Amendment negligently caused property damage cases.

Because the converse of that is, I suppose, is every automobile accident involving a state employee is a 1983 claim where you’re guaranteed attorney’s fees?

Kevin Colleran:

No, I don’t think so, Your Honor, not at all.

John Paul Stevens:

Why not?

Kevin Colleran:

I think that the thrust of Section 1983, or the color of state law provision, is the misuse of power.

And simply because we have an automobile accident involving a state employee does not mean that there has been misuse of power.

John Paul Stevens:

Well, there’s been… but you stick rather closely to the language of the Constitution.

There’s been a deprivation of property without due process of law, causing an injury to the plaintiff.

Kevin Colleran:

Well, that’s correct, for the Fourteenth Amendment.

For Section 1983 it requires a misuse of state power.

And I’m saying that while he may have been deprived of a constitutional right, it may be only a common law tort, as opposed to giving him accessibility to Section 1983.

Warren E. Burger:

Is your claim based on negligence?

Kevin Colleran:

I think it is based upon the fact–

Warren E. Burger:

Yes, or no?

Kevin Colleran:

–My claim is based… well, on a yes or no answer, I don’t know that it’s possible to–

Warren E. Burger:

Well, why not?

Kevin Colleran:

–Pardon, Your Honor?

Warren E. Burger:

Why not?

It’s a very simple question.

Kevin Colleran:

Well, my claim is based upon a very high degree of negligence, Your Honor.

Warren E. Burger:

Well, high degree… it’s negligence?

Kevin Colleran:

Yes, it is.

Warren E. Burger:

Then what’s the difference between that and a state truck that’s racing down the street at 70 miles an hour?

That’s a high degree of negligence, isn’t it?

Kevin Colleran:

It is–

Warren E. Burger:

Doesn’t that bring it within Justice Stevens’ question?

Kevin Colleran:

–I think that first of all, with that given set of facts… let me, if I could, embellish the facts a little bit.

I think that–

William J. Brennan, Jr.:

Well, let me see… I gather your position is that 1983 requires both a violation of the Constitution and a violation under the color of state law.

Kevin Colleran:

–That is correct.

William J. Brennan, Jr.:

And you say here there’s a violation under color of state law because of the participation of the warden and the hobby manager–

Kevin Colleran:

That is correct.

William J. Brennan, Jr.:

–Whereas in the automobile accident case you can’t prove a–

Kevin Colleran:

Misuse.

William J. Brennan, Jr.:

–Under color of state law.

Kevin Colleran:

That’s correct.

There is no… under these facts that you’ve just given me, there’s no way that I can say that there has been a misuse of state power.

William H. Rehnquist:

Why not?

Supposing that–

–Why do you equate misuse of state power with under color of state law?

Under color of state law simply means that the person was employed by the state or acting for purposes of the state, doesn’t it?

Kevin Colleran:

Well, as I understand Section 1983, I think, as I understand Section 1983, one of the purposes for its creation was the misuse of state power, and it seems to me the distinguishing feature here in this particular case is, we have the warden, who is the chief administrative official of the institution, and we have the individual who is charged with the responsibility of protecting the respondent’s property taken into custody, and they are in effect violating an affirmative duty placed upon them by the institution itself, by ignoring–

Potter Stewart:

Well, what’s that got to do, really, with whether or not there’s a constitutional violation?

And there couldn’t be a constitutional violation in this case unless the state or its agencies were the defendants–

Kevin Colleran:

–Yes.

Potter Stewart:

–Because the Constitution prohibits only a state depriving somebody of property without due process of law, or taking somebody’s property without compensation.

It doesn’t prohibit a private party from doing so.

Kevin Colleran:

I agree.

Maybe I didn’t understand the thrust of Justice Rehnquist’s question.

Harry A. Blackmun:

Where in this litigation was the talk of the existence of a state tort claims act raised?

Kevin Colleran:

It was raised for the first time at the application for rehearing in the 8th Circuit Court of Appeals, and this, as I started to say, before was… that was a year ago, this time, which means that it was three years after the statute of limitations had run on the respondent in this claim.

Harry A. Blackmun:

This lawsuit really hasn’t been tried, has it?

It went off in summary judgment?

Kevin Colleran:

That’s correct, Your Honor.

Harry A. Blackmun:

Is the existence of the State Tort Claims Act an affirmative defense on the part of the defendants?

Kevin Colleran:

Well, I don’t know that it is under the Nebraska law an affirmative defense, but the Attorney General’s office is charged with the administration of processing the Tort Claims Act, and it seems to me that for the year and some six months that they had notice of this claim, Mr. Taylor claiming that he had been deprived of a constitutional right, that they could have either raised that in their pleadings or have told him in some other communication that they felt that he was in the wrong court under the wrong law.

Harry A. Blackmun:

Well, it certainly was not raised in the pleadings.

Kevin Colleran:

It certainly was not raised in the pleadings; it was not raised at any time in the trial court.

It was not raised at any time in their brief.

It the 8th Circuit Court of Appeals it was raised for the first time in their application for rehearing.

Harry A. Blackmun:

I’m merely asking whether we aren’t spinning our wheels with all this talk about the State Tort Claims Act in the posture of the case as it is before us?

I should direct this to your opponent, not to you.

Kevin Colleran:

Well, yes; that’s correct.

I guess it’s our position, Justice Blackmun, that at this point in time, it does seem to me that the State having raised it for the first time in its application for rehearing, it’s a little bit tardy.

The statute of limitations has run on Mr. Taylor now.

There’s a two year statute of limitations which expired, as I indicated before, prior to the time that I was appointed counsel in this case.

Byron R. White:

Suppose there had been ample notice to him from the very outset about the tort claims procedure, and he just ignored it?

Kevin Colleran:

I think that under the state of the law in 1975, and as I understand the law even today, that that would have… it was his choice of forum.

He has an allegation of a federally protected or constitutional right he thinks he’s been deprived of.

Byron R. White:

Yes, but the argument on the other side is not that exhaustion of administrative remedies is controlling.

It’s a question of whether there can be a violation of the Due Process Clause for depriving somebody of property if you stand ready to pay him for it.

And if there is that procedure in place and if he knew about it, if they had given him ample notice of it and he just ignored it?

Kevin Colleran:

Well, they didn’t given him ample notice, and to the extent that he was aware of the procedures, the grievance procedures at the institution, he did pursue those, and got nowhere.

William H. Rehnquist:

Why isn’t the same principle applicable with respect to the small claims court proceeding as in your responding to Justice White’s question?

He filed… he said he needed something to file in the small claims court?

There apparently was no obstacle to his filing there.

You said he wouldn’t have had a lawyer there, but most small claims courts operate with no lawyer on either side, as I understand it.

Kevin Colleran:

That is correct, and that is true in Nebraska as well, Your Honor, and I’m just saying that in this case, the only thing I know about his small claims application is mentioned in the tag end of his complaint, and he said that he tried it and was dismissed summarily out, twice.

And I attempted to run down the records of it, and they had no trace of them, so I really don’t know what went on in small claims court.

Byron R. White:

You didn’t file his complaint?

Kevin Colleran:

In the small claims court?

Byron R. White:

No, here?

Kevin Colleran:

No, I did not; it was a pro se complaint filed some year and a half before.

William H. Rehnquist:

He doesn’t automatically get a lawyer in the 1983 pro se action.

Kevin Colleran:

That’s correct.

Lewis F. Powell, Jr.:

Mr. Colleran, may I put this hypothetical to you?

Let’s assume that a state tax department through negligence in the operation of its computer, for example, failed to make a refund that was due a taxpayer, say, for two or three years.

Finally it came to the taxpayer’s attention.

Would that case be analogous to this one, so it could be a constitutional violation to justify a 1983 lawsuit?

Kevin Colleran:

If I understand your question, if the computer malfunctions and the taxpayer is deprived of some of his tax dollars?

Lewis F. Powell, Jr.:

He doesn’t get his money for two or three years, whatever the time.

He doesn’t get it when it is due.

Let’s assume, to make the case perhaps easier for you, that negligence is alleged.

And if the people who operate the computer had known exactly how to manage it the way it should have been managed, that error would not have been made.

Kevin Colleran:

Well, I think that under those circumstances and perhaps with the situation with the racing state car, there would be, I think there would be the entitlement of some qualified immunities, and if these qualified immunities were–

Lewis F. Powell, Jr.:

But before you come to immunity, you have to have liability.

Would there have been liability under 1983?

A suit against the individual personally and officially?

Kevin Colleran:

–I guess I would have to say I don’t know.

I think that if there had been… had that been negligence.

–I can’t–

Lewis F. Powell, Jr.:

Would it be any easier for you if you eliminated the computer and some clerk had simply made a mathematical error, an a stupid mathematical error, negligently, that resulted in the delay in the payment of a just refund?

Kevin Colleran:

–I think that if the individual established the deprivation of a constitutional right and it was–

Lewis F. Powell, Jr.:

Well, you’re assuming the answer when you say that.

Kevin Colleran:

–That is correct.

And I’m not certain what the deprivation would be in the particular hypothetical that you have just set forth.

Lewis F. Powell, Jr.:

You think that’s immediately and clearly different from your case?

Kevin Colleran:

I think it is.

I think that here the individual ordered the property and in accordance with institutional procedures relied upon those procedures and was denied that property when it got to the institution.

Lewis F. Powell, Jr.:

If you’re entitled to money, that’s not a deprivation of property if it’s withheld from you?

Kevin Colleran:

Yes, I think it is.

I think it would be a deprivation, and assuming that there were some procedural violations and there were allegations of negligence, then that may well set forth a Section 1983 action.

William H. Rehnquist:

Mr. Colleran, you say Mr. Parratt was liable.

Concededly, he had nothing to do with the misdelivery or stealing, or whatever it was, of the packages, but because he was warden and responsible for the administration of the institution, I take it?

Kevin Colleran:

No, I think that there is more involvement on the warden’s part than that, Your Honor.

I think that, as I noted earlier, he was charged with the responsibility of administering this procedure.

And he was administering a procedure that was worse than no procedure at all.

He testified under oath in his answers to interrogatories that he felt the institutional procedure was that anyone who happened to be around, in effect, to receipt for an inmate’s property, could do so.

And it seems to me this placed him in a position where he could not supervise those under his control, he could not correct the incorrect application of the institutional procedures, and he could not correct the incorrect application of the institutional procedures, and he could not supervise the petitioner Lugenbill, who is charged directly with the control and custody of the property.

William H. Rehnquist:

What if his answer had been, to this interrogatory, we have a perfectly satisfactory system in our manual.

I can’t be there every day seeing what comes in in the mail delivery.

I rely on other people to do it.

Do you think you still could hold him liable for money damages?

Kevin Colleran:

I think that if he made the institutional procedures available to those charged with the direct administration of this and saw to it that they got those procedures, and perhaps instructed them that they should be read and they should be thoroughly familiar with them, then there would be a more tenuous connection with the warden in in this case.

William H. Rehnquist:

How about the Governor of Nebraska who appoints the warden?

Kevin Colleran:

Well, I don’t think that the Governor… I think that in this particular state the warden is under a direct statutory duty to administer the institutional procedures.

Potter Stewart:

So, at least on the basis of respondeat superior, you think, if you’re correct in your basic substantive claims, that he’s the proper party and defendant?

Kevin Colleran:

Well, I guess I think it’s more than respondeat superior.

Potter Stewart:

Well, I know, but at least on that basis?

Kevin Colleran:

Yes.

But I think, again–

Potter Stewart:

I know; you think in this case, it is?

Kevin Colleran:

–Yes; yes.

I guess, in summing up, I would say that… and I recognize that this Court in Rizzo has held that respondeat superior is not viable under Section 1983, but again, I think in this case there is more than that involved.

I think that… again, I think Mr. Taylor has been deprived of a constitutional right.

John Paul Stevens:

What is the constitutional right?

Kevin Colleran:

The right to his property.

John Paul Stevens:

Is it just the right to his property, period?

Kevin Colleran:

No, I think that he was deprived of it without due process of law as well.

John Paul Stevens:

Then, you have to allege the absence of due process.

Justice Blackmun suggests there was an affirmative defense.

I wonder if, isn’t perhaps the issue, who has the burden of telling us whether or not there is an adequate state remedy?

Kevin Colleran:

Well, I suspect that that burden then properly belongs upon the State of Nebraska.

John Paul Stevens:

Well, why, if the constitutional violation is not just the deprivation of property, but the deprivation of property without due process of law, perhaps one could argue that you have the burden of demonstrating an absence of available process?

Kevin Colleran:

Well, I think that, in a reading of Section 1983 and the cases they have–

John Paul Stevens:

We’re talking about the constitutional violation now.

Kevin Colleran:

–Correct.

I’m sorry.

I meant in reading Monroe and the cases that have followed, I don’t think that there’s been any intimation that the State Tort Claims Act was a substitute for–

Potter Stewart:

I thought your claim was that the very taking of his property without charging him with anything, without a hearing, without notice, was itself a deprivation of his property without due process of law?

Kevin Colleran:

–Absolutely.

That is our position.

Warren E. Burger:

Well, where does the negligence come in?

The wrongful taking of his property.

Kevin Colleran:

It’s a case of conversion, boiled down to its simplest.

They took property that belonged to him into their custody–

Thurgood Marshall:

Well, now, which is it?

Is it conversion?

Is it taking without due process?

What is it?

Kevin Colleran:

–Well, I think, in this particular case it’s the taking without due process.

Thurgood Marshall:

That’s all you allege.

What if an inmate had taken it rather than it disappearing the way it did?

Kevin Colleran:

Well, I think then, that if the inmate… you mean, had simply gone in his cell or something and taken it?

Thurgood Marshall:

Yes.

Kevin Colleran:

Well, I don’t know, then, that the… I don’t know that the state in that instance would be responsible, or the warden, or the supervisor, just given those set of–

Warren E. Burger:

Why not?

Doesn’t the State have an obligation to watch the property of the inmates?

Wouldn’t that be as valid a negligence theory as you’ve alleged here?

Kevin Colleran:

–I don’t think so, Your Honor.

I think there’s an important difference in simply property disappearing out of a cell and in a place where an individual orders property through the United States mails in reliance upon an institutional procedure, that he will be able to take that property into custody when it gets there.

And he orders that property and pays for it and relies upon it, and then finds when he gets out, the property has disappeared… because institutional procedures haven’t been followed.

As again, I stated earlier, this was worse than no procedure at all because Mr. Taylor was left in the position where he thought there was an institutional procedure to protect his property.

He finds out that not only is the institutional procedure not being followed but there is one that has been placed into effect, apparently by the warden, in the custody of the hobby center, that is worse than no policy at all.

Warren E. Burger:

We will resume there at 1 o’clock.

You have about five minutes remaining to you, counsel.

0 [Recess.]

Mr. Brown, you may resume.

J. Kirk Brown:

Your Honor, first of all, I would like to point out again, since it came up in Mr. Colleran’s argument, we do not look to the existence of the tort claims remedy as an affirmative defense.

Our view is that the existence of that remedy or some similar remedy in fact provides the process due under the Fourteenth Amendment.

Therefore, if it is absent in any forum… it’s against the plaintiff, although he may not need to allege it specifically under Gomez he certainly would have the burden of proving that as a part of his prima facie case.

Second of all, with regard to the use or abuse of state power, it seems to me on this record the only use of state power here was the establishment of the bailment of that property when it came into the institution.

And the loss of it, I don’t think necessarily involves an abuse of process in any respect.

Potter Stewart:

Well, Didn’t Monroe v. Pape say that 1983 is available, whether something is legitimate under state law or illegitimate under state law?

J. Kirk Brown:

I guess I don’t understand.

Potter Stewart:

Well, I thought that’s what that case held, and I thought that’s what accounted for the multiplicity of 1983 suits that followed in its wake.

So long as the defendant is a state officer, is what it comes down to, and it’s no defense to show that it was either legitimate or illegitimate under state law.

J. Kirk Brown:

No, what I’m saying is that the–

Potter Stewart:

So there doesn’t need to be an abuse of state power.

J. Kirk Brown:

–I would think, for liability, there does have to be some showing of an abuse of the power of the state.

Our position would be that that showing is necessary to impose liability.

William H. Rehnquist:

What you mean is abuse of a power amounting to a violation of the Constitution, don’t you?

J. Kirk Brown:

Yes.

Warren E. Burger:

Your argument is that an abuse by way of negligence does not violate the Constitution, is that it?

J. Kirk Brown:

Yes.

We’re saying that this is a threshold question, and simply that negligence, at least with respect to the context of a property loss, negligent property loss, simply does not cross the threshold of a constitutional violation.

Therefore it becomes in essence then a part of the plaintiff’s case.

Potter Stewart:

What if the property had been worth, instead of $23.50, $100,000?

J. Kirk Brown:

I would make no distinction.

Warren E. Burger:

Is it your position the Tort Claims Act is what takes care of that?

J. Kirk Brown:

I think our position, as we briefed it and it is today is that the Tort Claims Act provides that type of remedy.

I think this came out here also.

Our small claims remedy may.

Due process being as flexible a concept as this Court has pointed it out to be, I think any one of these remedies might be evaluated as providing the process due.

Potter Stewart:

In your brief you make a de minimis argument, and that argument wouldn’t be available to you if the property were $100,000.

J. Kirk Brown:

I made that argument because I know that certain of the district court have employed that argument.

I felt it was obligatory on us to raise it.

Quite frankly, I don’t have any personal belief in the strength of that argument.

With regard to any factual dispute, I would simply point out that under Federal Rule of Civil Procedure 56, the Court was obliged when granting summary judgment to review all the pleadings on file and just ask the Court to review them again.

And finally, I would like to say that with regard to the question of negligence and whether simple negligence itself forms a cause of action under 1983, that I think the interest shown by amicus on behalf of the petitioners here, along with petitioners themselves, indicates a strong desire for some guidance from this Court on that question.

And I would ask the Court if possible to provide us some sense of where we stand on that question.

Finally, I think that if the penal systems of this country are to improve, and I think we all desire that they do, we’ll need qualified, intelligent, and reasonable people to run them.

And I think we have to be careful not to make penal administration a legal jungle that just has so much potential for liability that actually no reasonable person would want to work in that area.

Warren E. Burger:

Could the State of Nebraska in its Constitution, from Federal Constitution, just abolish its hobby program totally?

J. Kirk Brown:

I would suspect this would be one of the potentials.

We would have to evaluate administratively whether or not we want to carry on that type of activity, if in fact our administrators are going to be held personally liable for the loss of this type of material, when–

Harry A. Blackmun:

Are you indicating there are a lot of losses?

Certainly, you wouldn’t reevaluate because of a $23 loss, would you?

J. Kirk Brown:

–We wouldn’t want to reevaluate, but certainly it would have to play a part in our thinking with regard to any material we allow to be introduced into the institution that is not constitutionally mandated.

I’m simply saying that would have to be weighed in our consideration.

Thurgood Marshall:

Would I be correct in assuming that you’ve already done something to correct somebody from stealing people’s property?

J. Kirk Brown:

Well, we thought we had a system at that time, Your Honor.

That system has basically been continued.

Thurgood Marshall:

Well, my final question is, why didn’t you tell this man that he could get his remedy by the claims act?

J. Kirk Brown:

My understanding is that he was informed.

I was not personally involved at that point in time.

Warren E. Burger:

I see.

Okay, if you don’t know.

It’s true there’s $23.50 involved here, but is it reasonable to assume that a good many thousands of dollars have been expended in professional time, printing costs, legal proceedings?

J. Kirk Brown:

That’s very reasonable to assume.

Byron R. White:

Could I ask you if you think the Court of Appeals was given an adequate opportunity to consider your suggestion that there was a procedure available to have this property paid for?

J. Kirk Brown:

Mr. Colleran is right in the fact that that issue was initially raised in our motion for rehearing, but I think, as it relates to such a basic issue, that they did have an opportunity to consider it.

Certainly we don’t have any indication that they did.

Byron R. White:

But is there anything in the record to indicate that this man was aware of the possibilities of this procedure within the time limits that the procedure requires?

J. Kirk Brown:

Well, I would point out to the Court, first of all… well, let me answer… with the exception of the Exhibit B, which I referred to earlier, which may or may not relate to the State claims now… or to the State tort claims, whether it relates to our small claims, and I don’t know that that is distinguished, that’s the only–

Byron R. White:

That was only when the complaint was filed?

J. Kirk Brown:

–Right.

My understanding is that’s the only thing in the record that would indicate his awareness of the situation one way or the other.

I would point out to the Court, however, that under Section 81A, 227(2) of the Nebraska Act, it also provides for a waiver of the statute of limitations under the Claims Act, if in fact the claimant has initially gone to an improper forum.

Now that is couched in terms of a state forum, but I think, as was pointed out earlier, that they might take a lenient view of that, that situation, in the case of a proceeding to–

Byron R. White:

Does the record show what the conversation was when he found out his property was lost?

Did he ever ask people to replace it or to pay for it?

J. Kirk Brown:

–The record… I will grant you, the record in this case is very scanty.

The record as I would understand it indicates that he contacted a Mr. Rybolt, who is one of the three parties whose sworn material is before the Court, who was the grievance officer, to look into the matter, and that searches were made to see if the material could be found.

Byron R. White:

Otherwise, the State just shrugged its shoulders?

For prison people?

They didn’t purport to suggest that they would pay for it or replace it?

J. Kirk Brown:

There simply is no showing on this record as to what happened, and I question the propriety of really informing you beyond that because, first of all, I was not personally involved in it.

Byron R. White:

Yes; all right.

Thank you.

J. Kirk Brown:

And I think we ought to stick to what is on the record.

But again, it seems to me, you have the question of where the burden falls as to… inform.

Apparently, from the record, Mr. Taylor was aware that some remedy was available to him.

Beyond that, quite frankly, the record is not very elaborate.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.