(concurring).
I concur in the reversal and remand in light of my dissent in Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976). The “taking” by the sheriff or his deputies of Kimbrough’s diamond ring was pursuant to the inherently governmental activity of holding the personal property of a prisoner while he is incarcerated. Whether the sheriff or one of his deputies failed to return the ring because he had converted it to his own use or had lost it through carelessness — for example, a third person’s theft of the ring from an exposed depository — a section 1983 action should be permitted.
*1062In simple terms, the original taking of the ring was action under color of state law. Its unexplained nonreturn constituted a deprivation of property without due process of law. The illogic of the intentional tort-negligence dichotomy erected by the majority in Bonner is graphically illustrated by the instant case. Judge Cummings writes for the court:
If Kimbrough can prove that Johnson or another employee of the Sheriff’s office either intentionally or with reckless disregard caused his property loss, the remedy afforded under Section 1983 may deter similar misconduct. Our conclusion that a taking with intent (or reckless disregard) of a claimant’s property by a State agent violates the Due Process Clause of the Fourteenth Amendment and is actionable under Section 1983 is in harmony with the decisions in other Circuits, (footnotes omitted).
I am uncertain what “reckless disregard" means in this context. Is it something less than an intentional act, yet something more than negligence? The majority’s failure to supply a standard for this amorphous term will continue to leave borderline cases in doubt.
Moreover, Kimbrough should not be put to the probably impossible task of proving that there was an intentional conversion or “confiscation” of his property. The defendants were responsible for the safekeeping of the ring. They should be responsible for its return or its value regardless of whether the loss was occasioned by an intentional conversion or negligence.