(concurring).
While I agree with the result we reach in this case, I do not believe we can avoid some discussion of this court’s recent decision in Bonner v. Coughlin, 517 F.2d 1311 (7th Cir., 1975). In Bonner we dealt with the sufficiency of a complaint brought under section 1983 which alleged in part that prison guards who had entered the plaintiff’s cell to conduct a routine prison search had upon completing the search left the cell door open, allowing other persons to enter plaintiff’s cell and remove his property. Though one of the questions briefed and argued in that case was whether “mere negligence may support a recovery under section 1983,” our court did not answer this question, but focused instead on the content of the Fourteenth Amendment right not to be deprived of property by the state without due process. Our Court held in Bonner that in claims arising out of the “misconduct” of state officers resulting in property deprivation or damage, due process is satisfied if state law provides an adequate tort remedy by which the person whose property is taken or damaged can be made whole for his loss. Noting that Illinois has abolished sovereign immunity in “claims against the State for damages in cases sounding in tort,” Ill.Rev.Stat.1973, ch. 37, § 439.8(d), and noting further that *1060the individual defendants did not appear t'o possess any state immunity which would bar suit against them in a state court, Bonner at n. 23, the court concluded that the plaintiff in Bonner had failed to allege the breach of any duty derived from the Fourteenth Amendment, and that the availability of the state tort remedies, satisfied the requirements of due process.1
Unless limited in some way, the foregoing rationale might apply as well to the present facts.2 This is an Illinois case, and Kimbrough would appear to have the same remedies at his disposal as did Bonner.3 Here, however, the *1061pleadings would support proof of a willful and arbitrary taking of plaintiff’s ring by a state officer. This, it seems to me, is a critical distinction. A state officer who in the course of his duties purposefully appropriates the property of another to the state or to himself may violate that other person’s right to due process in two ways: first, he may violate the person’s right to procedural due process by failing to provide for a prior or reasonably contemporaneous hearing; second, he may violate the person’s right to substantive due process by affirmatively invoking the power of the state in a completely arbitrary4 manner and without lawful justification in order to effect the actual deprivation.5
In Bonner, this court was concerned with the requirements of procedural due process in the context of a simple negligent act6 by a state offieer• resulting in loss of property. In footnote 24 of that opinion we noted that a prior hearing in the case of a negligent act would be impossible since neither the state nor. its agent could anticipate such an act. I agree with this proposition as a logical matter.7 Where willful acts are involved, however, I do not think such an analysis is sufficient. A state officer who uses his office and the power of the state to lawlessly confiscate, damage, or destroy the property of another deprives that person of due process regardless of • any consideration concerning hearings. *1062The very concept of procedural due process presupposes that the substantive decision-making will be based on some lawful rule or system of rules such as prison regulations, the provisions of a public employment contract, the specific proscriptions contained in a valid obscenity ordinance, or common law limitations of the police power. The purpose of the hearing is to assure that the legal rules will be applied to a full record of relevant facts. If the legal rules are themselves discarded in favor of the arbitrary desires of the decision-maker (in this case perhaps the desire of a prison official to appropriate the diamond ring to his own personal use) then procedural niceties become irrelevant.8 Put another way, if, under all the circumstances, the state could not possibly justify the action taken by its agent, the action violates due process and the agent is liable under section 1983, regardless of the procedures used in reaching the unlawful result.
I interpret the opinion in this case to hold that Kimbrough has adequately stated a cause of action under section 1983 9 based on deprivation of his property without due process.10 If my interpretation is a correct one, our decision today and our recent decision in Bonner can only be reconciled if Bonner is limited to cases involving simple negligence. Since I am unable to conclude that Bonner is so limited on its face, I note my own view that it has been restricted to cases involving simple negligence by today’s decision.
, Thus, in my view, neither Bonner nor this case deals with “the outer limits of § 1983 litigation,” but rather with the meaning and content of the Fourteenth Amendment’s protection against state deprivation of property without due process. In this regard, I must note that while I can agree with Judge Stevens’ identification of “deprivation,” “state action,” and “due process” as elements of any claim under the Fourteenth Amendment’s Due Process Clause, I cannot agree with several suggested limitations of these concepts which appear to be advanced in his separate concurrence in this case. First, I certainly cannot agree that this case requires significant analysis to determine whether a deprivation has occurred within the meaning of the Fourteenth Amendment and section 1983. The alleged value of the ring is $2,500.00, so it cannot be contended that this is a de minimis situation simply in terms of the value of the item involved see Goss v. Lopez, 419 U.S. 565, 575-76, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); nor is the character of the property relevant, since the Due Process Clause does not distinguish between different kinds of property. Fuentes v. Shevin, 407 U.S. 67, 88-90, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U.S. 601, 608, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). Finally, the deprivation in this case is alleged to have been intentional, so that any construction of section 1983 which includes as a purpose therefore the remedying and prevention of misuse of state authority would certainly cover this official misconduct within its definition of the term “deprivation.”
On the issue of state involvement, I believe the law to be equally clear. With regard to the Fourteenth Amendment itself, it has been established since the decision of the Supreme Court in Ex Parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879) that
“[w]hoever, by virtue of a public position under a State government, deprives another of property, life, or liberty without due process of law . . . violates the constitutional inhibition, and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or evade it.” Id. at 347.
Similarly, liability under section 1983 cannot properly be conditioned on express state authorization, as for example, by statute. “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, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Here again, the fact that the alleged deprivation was intentional precludes the argument that the facts in this case fall outside the scope of the “under color of” requirement of section 1983, or the state action requirement of the Fourteenth Amendment.
We are plainly left, I believe, with the single question of whether a state deprivation of property based on one’s “race, social, political, religious and moral views” (complaint, p. 4) is violative of the Due Process Clause of the Fourteenth Amendment.
. So construed, Bonner would be in apparent conflict with our recent opinion in Carroll v. Sielaff, 514 F.2d 415 (7th Cir. 1975), which despite its inclusion in footnote 17 in Bonner, was never previously characterized as a Fourth Amendment case and was in fact briefed and argued in Fourteenth Amendment terms.
. I cannot ágree that this case should turn on the adequateness of the remedy Kimbrough might have available in the courts of Illinois, should he elect to sue there for the return of his ring or for damages. “[N]o later hearing and no damage award can undo the fact that the arbitrary taking . . has already occurred. ‘[The Supreme Court] has not embraced the general proposition that a wrong may be done if it can be undone.’ Stanley v. Illinois, 405 U.S. 645, 647 [92 S.Ct. 1208, 31 L.Ed.2d 551].” Fuentes v. Shevin, 407 U.S. 67, 82, 92 S.Ct. 1983, 1995, 32 L.Ed.2d 556 (1972). The wrong in this case was the initial deprivation; the state of Illinois cannot immunize its agent from liability under section 1983 by *1061adopting for itself an attitude of “if you don’t like it, sue.” It must be kept in mind that the defendant in this case is not the state, but the individual agent[s]. Regardless of the status of state immunity doctrine in Illinois, the misuse of state power alleged is a completed act, and the only act upon which liability is predicated in this case.
. I use the term “arbitrary” in its commonly accepted sense, which, according to Webster and to Black, denotes a conscious choice of alternative actions. Webster’s Third New International Dictionary (1961); Black’s Law Dictionary (1951). So construed, the term does not comprehend simply negligent actions.
. In Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1 (7th Cir. 1974), this court dismissed a section 1983 complaint based on an alleged denial of substantive due process for failure to allege a sufficient property or liberty interest under the Fourteenth Amendment. In doing so, the court briefly touched on the nature of substantive due process;
The claim that a person is entitled to “substantive due process” means, as we understand the concept, that state action which deprives him of life, liberty, or property must have a rational basis — that is to say, the reason for the deprivation may not be so inadequate that the judiciary will characterize it as “arbitrary.” Since standards of “irrationality” or “arbitrariness” vary from time to time and from judge to judge, applications of the concept — indeed, the concept itself — have generated serious criticism of the judiciary and the judicial function. In this case we need not appraise the viability of the concept . . .. Id. at 3^1 (footnotes omitted).
I recognize the validity of much of the criticism directed at the unrestrained use of the rubric of due process to invalidate state laws deemed to represent “unwise” or “bad” policy in the eyes of a particular judge. Yet I cannot avoid the conviction that however much “standards of ‘irrationality’ or ‘arbitrariness’ vary from time to time and from judge to judge,” none would disagree with the proposition that some justification of some kind is required to legitimize state interference with the ownership and enjoyment of property, and that considerations of race, or an individual’s views on social, political, religious, or moral subjects, or indeed, the individual desire of a state agent to take for himself the property of another' — ■ which amounts to no justification at all — , cannot pass muster as constitutional predicates for such interference. I believe a fundamental purpose of the Due Process Clause is to prevent such arbitrary state action whenever life, liberty, or property may be thereby adversely affected.
. I specifically note my understanding that Bonner did not involve allegations of gross negligence or reckless misconduct. Compare my dissent in Gutierrez v. Dep’t of Public Safety, 479 F.2d 701, 724-25 (7th Cir. 1973), with Judge Fairchild’s concurrence in Bonner.
. I do not express any view here in the question of whether simple negligence or even a non-negligent failure to act may provide state action cognizable under the Fourteenth Amendment or section 1983. Compare Judge Fairchild’s concurrence in Bonner with this court’s opinion in Byrd v. Brishke, 466 F.2d 6, 10 (7th Cir. 1972), and the opinion of the Fifth Circuit in Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969).
. It is clear that in this case Kimbrough does not seek a hearing, but rather the return of his ring. The state does not maintain that any rule or other legal justification would support the retention of the ring, so a hearing, even if offered, would serve no purpose. Cf. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).
. I cannot agree that this case may properly be resolved by remanding to the district court Kimbrough’s Eighth Amendment claim and by directing him to pursue a state remedy in connection with his ring on a theory of pendent jurisdiction as Judge Stevens suggests. First, I believe that there is no basis for the exercise of pendent jurisdiction over the state property claim unless a federal claim based on the taking of the ring is established. The analysis of pendent jurisdiction in United Mineworkers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) indicates that pendent jurisdiction must find its basis in a “common nucleus of operative fact” id at 725, 86 S.Ct. 1130, so that the federal and state claims can be considered as presenting “but one constitutional ‘case.’ ” I simply do hot see such a relationship between a claim under the Eighth Amendment relating to the conditions of a three-day term of solitary confinement, and a state cause of action based on the unlawful conversion of a diamond ring. Proof of the federal claim will do virtually nothing toward establishing the state claim, which has an entirely separate factual basis. More importantly, I do not believe it to be within the proper function of this court to refuse to adjudicate the question presented by Kimbrough’s complaint, that is, whether the deprivation of his ring presents a cause of action under section 1983. We do not know but that Kimbrough has chosen the federal remedy because punitive damages would be awardable on a showing of a willful and bad faith misuse of state authority as is alleged. Donahue v. Staunton, 471 F.2d 475, 482 (7th Cir. 1972), cert. denied, 410 U.S. 955, 93 S.Ct. 1419, 35 L.Ed.2d 687 (1972). At any rate, it seems to me that the choice of theories is his to make. Our function is not to avoid his question by imposing another cause of action in this case, but to decide whether the complaint states a cause of action in the first instance.
. Unlike the Fourth Amendment situation presented in Bonner, where it was alternatively alleged that the prison guards had unreasonably seized Bonner’s trial transcript during a routine search of his cell, this case does not involve an allegation that the seizure of Kimbrough’s ring was unreasonable. The objection here is to the continued deprivation after Kimbrough was released from the state prison into federal custody. This, it seems to me, is most clearly a due process problem, and for this reason I do not undertake to determine whether such continued retention after a concededly lawful seizure might also be characterized as a “new” seizure, calling into play Fourth Amendment protections.