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June 4, 1973

Caswell LATHAN, Jr., Plaintiff,
Russell G. OSWALD, Commissioner of the Department of Correctional Services, et al., Defendants

Bauman, District Judge.

The opinion of the court was delivered by: BAUMAN

BAUMAN, District Judge.

Plaintiff, Caswell Lathan, Jr., brings this action pursuant to 42 U.S.C. § 1983 and its jurisdictional complement, 28 U.S.C. § 1343(3), alleging violation of rights secured by the Sixth, Eighth and Fourteenth Amendments. *fn1" Before the court is the motion of the Attorney General of the State of New York, acting on behalf of all defendants, for an order dismissing the complaint for failure to state a cause of action or, in the alternative, granting defendants summary judgment.

 On June 24, 1960, plaintiff was convicted of first degree murder in the County Court, Bronx County and was thereafter sentenced to life imprisonment. He started his confinement at the Auburn Correctional Facility in Auburn, New York and remained there (with the exception of a brief interlude not relevant here) through May 30, 1972. Next day he was transferred to the Green Haven Correctional Facility at Stormville, New York, having previously been notified of the impending transfer and given the opportunity to pack his personal belongings in sacks for shipment. Included among his very substantial *fn2" accumulation of possessions were 50 1/2 cartons of cigarettes. When the contents of the sacks were inventoried at Green Haven, he was understandably shocked to discover that they contained only 22 cartons and immediately wrote first to defendant Vincent and then to defendant Henderson complaining of his loss.

 To add insult to injury, a few days later, on June 4, 1972, plaintiff, upon returning to his cell, found 21 of his remaining 22 cartons of cigarettes gone.

 During the months that followed plaintiff doggedly sought compensation for these losses. He wrote numerous letters to defendant Vincent, conferred with Joseph Ronsini, a counselor at Green Haven, and corresponded with the Prisoner's Rights Project of the New York Legal Aid Society. In September, 1972 it was finally agreed that plaintiff would be compensated for the loss of the 21 cartons by having his account at the prison commissary credited with an appropriate amount of money.

 On October 21, 1972, plaintiff's cell was again looted, this time of a substantial quantity of groceries, the value of which he conservatively estimates at $389.80 for which he has not been compensated. He alleges that he then became so upset at these continuing thefts that he requested placement in the maximum security area of the prison (segregation) so that his property might be more secure. He also alleges that he became emotionally distraught, and was unable to sleep or eat properly in the following weeks.

 In his complaint, plaintiff sets forth three separate but interrelated causes of action. He first charges that prison officials were implicated in the theft of his cigarettes and groceries, either by stealing the goods themselves or permitting other inmates to do so. That being the case, he contends that the action of the prison officials constitutes a deprivation of property without due process of law. Second, he claims that the refusal of prison officials to permit him to telephone a lawyer while he was in segregation deprived him of needed legal assistance and violated his rights secured by the Sixth Amendment. Finally, plaintiff alleges that the mental anguish which resulted from these thefts, and the need to request confinement in segregation constituted cruel and unusual punishment in violation of the Eighth Amendment.

 Defendants do not really adduce any coherent arguments in support of their motion to dismiss. Their position seems to be rather that plaintiff's arguments are so beneath contempt that no response is warranted. In support of their Rule 12(b)6 motion, they urge that plaintiff at most charges negligence on the part of prison officials, and that such negligence is not actionable under § 1983. A thorough reading of plaintiff's highly detailed and remarkably cogent complaint reveals that he charges more than mere negligence: he charges the prison guards with complicity in the thefts, and alleges a deliberate refusal to permit him the use of the telephone.

 Insofar as defendants also deem theirs to be a motion for summary judgment, they have utterly failed to comply with Rule 9(g) of the General Rules of this court. *fn3" Too, it is abundantly clear that all of plaintiff's claims raise triable issues of fact that have not been resolved by the affidavits and documentary evidence offered by defendants.

 Although the insubstantiality of defendants' motion does not require me to go any further, I deem it useful to make clear that the instant complaint does state a cause of action under § 1983. In so doing I of course do not suggest that there is any merit to plaintiff's allegations; indeed, he may have great difficulty proving them at trial. I hold only that the allegations themselves are sufficient to survive a motion to dismiss.

 Prior to the Supreme Court's decision in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972), the law of this Circuit would have required the dismissal of plaintiff's first contention. Our Court of Appeals had held, in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), that an action arising out of the mere infringement of property rights was not cognizable under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Following Justice Stone's dissent in Hague v. C.I.O., 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423 (1939), the court interpreted § 1343(3) to confer jurisdiction only on actions alleging deprivation of "personal liberty." See also Bradford Audio Corporation v. Pious, 392 F.2d 67 (2d Cir. 1968): "to qualify under § 1983 the right sought to be enforced must in the main be one incapable of pecuniary evaluation . . .."

 The Second Circuit's reading of 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 has generally been followed in cases where prisoners have sued prison officials for confiscation or theft of property. Indeed, every reported case that my research has located holds that the mere deprivation of property is not actionable under § 1983. See, e.g., Urbano v. Calissi, 384 F.2d 909 (3d Cir. 1967), cert. denied, 391 U.S. 925, 88 S. Ct. 1824, 20 L. Ed. 2d 664 (1968); Kimble v. Department of Corrections, 411 F.2d 990 (6th Cir. 1969); Collins v. State of Florida, 432 F.2d 60 (5th Cir. 1970); Brown v. Wainwright, 419 F.2d 1308 (5th Cir. 1970); United States ex rel. Pope v. Hendricks, 326 F. Supp. 699 (E.D. Pa. 1971).

 However, the Eisen distinction between personal and property rights was explicitly renounced by the Supreme Court in Lynch, supra, at 542, 92 S. Ct. 1113 at 1117. The Court there stated: "This Court has never adopted the distinction between personal liberties and proprietary rights as a guide to the contours of § 1343(3) jurisdiction. [Footnote omitted] Today we expressly reject that distinction." A detailed study of the predecessors of 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, first enacted in the Civil Rights Act of 1871, 17 Stat. 13, confirms the Court's conclusion that "the Congress that enacted the predecessor of §§ 1983 and 1343(3) seems clearly to have intended to provide a federal judicial forum for the redress of wrongful deprivations of property by persons acting under color of state law."

 In Lynch the Court not only repudiated Eisen ; in my view, it also undermined the rationale of the line of cases cited above, denying prisoners the right to sue for deprivation of their personal property. Accordingly, I decline to follow them, and I hold that plaintiff has stated a cause of action under §§ 1983 and 1343(3) by ...

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