Herman Russell v. Joseph Bodner, Security Officer of the State Correctional Facility at Pittsburgh, Pennsylvania

Third Circuit

Herman Russell v. Joseph Bodner, Security Officer of the State Correctional Facility at Pittsburgh, Pennsylvania

489 F.2d 280, 1973 U.S. App. LEXIS 9716

CourtCourt of Appeals for the Third Circuit

DecidedMay 29, 1973

Docket72-1788

StatusPublished

Cited by30 cases

This text of 489 F.2d 280 (Herman Russell v. Joseph Bodner, Security Officer of the State Correctional Facility at Pittsburgh, Pennsylvania) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Herman Russell v. Joseph Bodner, Security Officer of the State Correctional Facility at Pittsburgh, Pennsylvania, 489 F.2d 280, 1973 U.S. App. LEXIS 9716 (3d Cir. 1973).

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PER CURIAM.

This is an appeal from an order dismissing as frivolous a pro se in forma pauperis prisoner Civil Rights Act complaint, after filing, but before the service of process or of any responsive pleading or motion. The complaint alleges that the defendant, a guard at the State Correctional Institution at Pittsburgh, Pennsylvania, entered the plaintiff’s cell and took some food. When plaintiff questioned the defendant’s authority to do so defendant responded that plaintiff “. . . was an inmate and himself an officer of justice (sic) that his authority lay in the social positions.” Plaintiff informed the defendant that if he ever entered plaintiff’s cell for any other purpose than a general shakedown, or by permission and authority of his superiors, administrative action would be initiated. Defendant responded that an inmate had no remedy available to prevent a security officer from taking whatever he wanted out of inmates’ cells, and went on to say “I’ll prove it to you.” Thereafter defendant entered plaintiff’s cell and took seven packages of plaintiff’s cigarettes.' Plaintiff forwarded several requests to the warden for relief, but the warden refused to respond. The complaint seeks injunctive relief and damages.

Judged according to the standard of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per cur-iam), and of Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970), the complaint sufficiently alleges that the guard, relying on his position and authority as such, entered the plaintiff’s cell and confiscated his cigarettes without justification. Accepting these allegations as true, as in the present posture of the case we must, the guard’s action was under color of state law within the meaning of 42 U.S.C. § 1983.

“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. Classie, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).

The value of the cigarettes is not determinative of the federal court’s jurisdiction in a Civil Rights Act case. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).

The order appealed from will be reversed and the case remanded for further proceedings in compliance with the Federal Rules of Civil Procedure.

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PER CURIAM.

This is an appeal from an order dismissing as frivolous a pro se in forma pauperis prisoner Civil Rights Act complaint, after filing, but before the service of process or of any responsive pleading or motion. The complaint alleges that the defendant, a guard at the State Correctional Institution at Pittsburgh, Pennsylvania, entered the plaintiff’s cell and took some food. When plaintiff questioned the defendant’s authority to do so defendant responded that plaintiff “. . . was an inmate and himself an officer of justice (sic) that his authority lay in the social positions.” Plaintiff informed the defendant that if he ever entered plaintiff’s cell for any other purpose than a general shakedown, or by permission and authority of his superiors, administrative action would be initiated. Defendant responded that an inmate had no remedy available to prevent a security officer from taking whatever he wanted out of inmates’ cells, and went on to say “I’ll prove it to you.” Thereafter defendant entered plaintiff’s cell and took seven packages of plaintiff’s cigarettes.' Plaintiff forwarded several requests to the warden for relief, but the warden refused to respond. The complaint seeks injunctive relief and damages.

Judged according to the standard of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per cur-iam), and of Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970), the complaint sufficiently alleges that the guard, relying on his position and authority as such, entered the plaintiff’s cell and confiscated his cigarettes without justification. Accepting these allegations as true, as in the present posture of the case we must, the guard’s action was under color of state law within the meaning of 42 U.S.C. § 1983.

“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. Classie, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).

The value of the cigarettes is not determinative of the federal court’s jurisdiction in a Civil Rights Act case. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).

The order appealed from will be reversed and the case remanded for further proceedings in compliance with the Federal Rules of Civil Procedure.

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489 F.2d 280, 1973 U.S. App. LEXIS 9716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herman-russell-v-joseph-bodner-security-officer-of-the-state-correctional-ca3-1973.

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