B. Standard of Culpability

Introduction to the Standard of Culpability in Section 1983 Actions

1. In Monroe v. Pape, 365 U.S. 167 (1961), the conduct that violated the United States Constitution also contravened state law. Does the federal government have any interest in intervening in this situation? How does the Monroe Court justify extending Section 1983 to such actions? What would be the effect of limiting Section 1983 to actions alleging unconstitutional conduct that was authorized by state law? See Pierson v. Ray, 386 U.S. 547 (1967).
2. As a result of Monroe v. Pape, does Section 1983 afford a federal cause of action in every situation where a state actor causes injury?
   1. Consider whether the following situations are actionable under Section 1983:
      1. A city policeman, while on routine patrol, negligently strikes a pedestrian with his patrol car. The pedestrian files a Section 1983 action against the officer alleging a deprivation of liberty and property without due process of law inflicted under color of state law.
      2. An inmate of a state prison slips on greasy stairs in the prison and injures his back. The prisoner sues under Section 1983, alleging cruel and unusual punishment and a deprivation of liberty and property without due process of law caused by persons acting under color of state law.
      3. A school board terminates the contract of a high school football coach. The coach files a Section 1983 action alleging that the board, acting under color of law, deprived him of property without due process of law.
   2. “[S]ection 1983 has profoundly disturbed those analysts concerned about maintaining a ‘proper balance’ between the national and state governments. The statute has increasingly been used as a device for bringing federal court suits which resemble state tort actions against state and local officials. Under the rubric of the due process or cruel and unusual punishment clauses, almost any common law tort can be converted into a constitutional violation and thereby made the basis of a section 1983 action.”Developments in the Law – Section 1983 and Federalism, 90 HARV. L. REV. 1133, 1172-73 (1977) (notes omitted).While federal law obviously should not totally occupy the entire field of state tort law, how can the possibilities described above be avoided? Does the language of the statute provide any limits on the reach of federal action? Did the Monroe Court make this result inevitable by directing that, “[s]ection 1979 [42 U.S.C. § 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” 365 U.S. at 187. Are there any violations of state tort law that would not likewise constitute an invasion of the Fourteenth Amendment? See Ingraham v. Wright, 430 U.S. 651 (1977); Estelle v. Gamble, 429 U.S. 97 (1976); Paul v. Davis, 424 U.S. 693 (1976).
3. In Collins v. City of Harker, 503 U.S. 115 (1992), the widow of an employee of the city sanitation department filed an action under Section 1983 to recover damages for her husband’s death as a result of asphyxia suffered when he entered a manhole to unstop a sewer line. Plaintiff sued the municipality, alleging that it had neglected to properly train its employees about the perils of working with sewer lines and had failed to provide suitable safety equipment and warnings.The court of appeals affirmed dismissal of the complaint, reasoning that plaintiff had failed to establish that the city’s action was taken in its capacity as a governing authority as opposed to in its role as an employer. The court construed Section 1983 to demand that in addition to proving a constitutional deprivation, plaintiff must establish abuse of governmental power.The Supreme Court reversed this aspect of the court of appeals’ opinion:
   

   The Court of Appeals’ analysis rests largely on the fact that the city had, through allegedly tortious conduct, harmed one of its employees rather than an ordinary citizen over whom it exercised governmental power. The employment relationship, however, is not of controlling significance. On the one hand, if the city had pursued a policy of equally deliberate indifference to the safety of pedestrians that resulted in a fatal injury to one who inadvertently stepped into an open manhole, the Court of Appeals’ holding would not speak to this situation at all, although it would seem that a claim by such a pedestrian should be analyzed in a similar manner as the claim by this petitioner. On the other hand, a logical application of the holding might also bar potentially meritorious claims by employees if, for example, the city had given an employee a particularly dangerous assignment in retaliation for a political speech, cf. St. Louis v. Praprotnik, 485 U.S. 112 (1988), or because of his or her gender, cf. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). The First Amendment, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and § 1983 provides a cause of action for all citizens injured by an abridgement of those protections. Neither the fact that the petitioner’s decedent was a government employee nor the characterization of the city’s deliberate indifference to his safety as something other than an “abuse of governmental power” is a sufficient reason for refusing to entertain petitioner’s federal claim under § 1983.

   503 U.S. at 119-20.

4. One suggested factor distinguishing injuries redressable through state tort law from constitutional harm cognizable under Section 1983 has been the state-of-mind or degree of culpability of the state actor causing the injury. Is this a proper distinction? If not, how can Section 1983 be limited to avoid federalizing state tort law?
   1. As a matter of policy, what degree of defendant’s culpability should a person deprived of a constitutional right have to prove to recover compensatory damages? Only that the defendant violated the Constitution? A constitutional violation and defendant’s negligence? A constitutional violation and defendant’s recklessness? A constitutional violation and defendant’s specific intent to invade victim’s constitutional rights?
   2. Under the common law, what degree of culpability must be proven to recover compensatory damages for tortious actions of private actors? Should the standard of culpability differ for obtaining an award for constitutional violations caused by government actors?
5. What is the standard of culpability under Section 1983 established by Monroe v. Pape? What authority does the Monroe Court cite for its holding that Section 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions”? 365 U.S. at 187.In Black v. Bayer, 672 F.2d 309, 314-15 (3rd Cir. 1982), the court of appeals, considering the Section 1983 liability of private attorneys appointed to represent defendants in criminal cases, observed:
   

   To understand the current teachings of the Supreme Court relating to … federal § 1983 cases, it is helpful to review briefly the development of relevant precepts. The Court has demonstrated much agility in weaving back and forth among concepts of constitutional deprivation, statutory construction, and state tort liability. Although students of jurisprudence may shudder at the promiscuous mingling of federal constitutional protection notions–derived from the text of a written federal Constitution–with precepts of tort liability–generally the product of evolving state court decisions strongly influenced by the American Law Institute’s Restatement of the Law–it will serve no useful purpose at this late hour for an inferior court to enter the lists on this formidable issue. The Supreme Court has spoken. The Court has cited no authority for generously mixing tort and constitutional law in interpreting § 1983, but it has stated its position vigorously and repeatedly.

    

   What are the proper sources to consult to determine the standard of culpability under Section 1983?

PARRATT v. TAYLOR, 451 U.S. 527 (1981).

Justice Rehnquist delivered the opinion of the Court.

[1]The respondent is an inmate at the Nebraska Penal and Correctional Complex who ordered by mail certain hobby materials valued at $ 23.50. The hobby materials were lost and respondent brought suit under 42 U. S. C. § 1983 to recover their value. At first blush one might well inquire why respondent brought an action in federal court to recover damages of such a small amount for negligent loss of property, but because 28 U.S.C. § 1343, the predicate for the jurisdiction of the United States District Court, contains no minimum dollar limitation, he was authorized by Congress to bring his action under that section if he met its requirements and if he stated a claim for relief under 42 U. S. C. § 1983. Respondent claimed that his property was negligently lost by prison officials in violation of his rights under the Fourteenth Amendment to the United States Constitution. More specifically, he claimed that he had been deprived of property without due process of law.^[1]

[2]The United States District Court for the District of Nebraska entered summary judgment for respondent, and the United States Court of Appeals for the Eighth Circuit affirmed in a per curiam order. 620 F.2d 307 (1980). We granted certiorari. 449 U.S. 917 (1980).

I

[3]The facts underlying this dispute are not seriously contested. Respondent paid for the hobby materials he ordered with two drafts drawn on his inmate account by prison officials. The packages arrived at the complex and were signed for by two employees who worked in the prison hobby center. One of the employees was a civilian and the other was an inmate. Respondent was in segregation at the time and was not permitted to have the hobby materials. Normal prison procedures for the handling of mail packages is that upon arrival they are either delivered to the prisoner who signs a receipt for the package or the prisoner is notified to pick up the package and to sign a receipt. No inmate other than the one to whom the package is addressed is supposed to sign for a package. After being released from segregation, respondent contacted several prison officials regarding the whereabouts of his packages. The officials were never able to locate the packages or to determine what caused their disappearance.

[4]In 1976, respondent commenced this action against the petitioners, the Warden and Hobby Manager of the prison, in the District Court seeking to recover the value of the hobby materials which he claimed had been lost as a result of the petitioners’ negligence. Respondent alleged that petitioners’ conduct deprived him of property without due process of law in violation of the Fourteenth Amendment of the United States Constitution. Respondent chose to proceed in the United States District Court under 28 U. S. C. § 1343 and 42 U. S. C. § 1983, even though the State of Nebraska had a tort claims procedure which provided a remedy to persons who suffered tortious losses at the hands of the State.

[5]On October 25, 1978, the District Court granted respondent’s motion for summary judgment. The District Court ruled that negligent actions by state officials can be a basis for an action under 42 U. S. C. § 1983; petitioners were not immune from damages actions of this kind; and the deprivation of the hobby kit “[implicated] due process rights.” The District Court explained:

“This is not a situation where prison officials confiscated contraband. The negligence of the officials in failing to follow their own policies concerning the distribution of mail resulted in a loss of personal property for [respondent], which loss should not go without redress.” App. to Pet. for Cert. 9.

II

[6]In the best of all possible worlds, the District Court’s above-quoted statement that respondent’s loss should not go without redress would be an admirable provision to be contained in a code which governed the administration of justice in a civil-law jurisdiction. For better or for worse, however, our traditions arise from the common law of case-by-case reasoning and the establishment of precedent. In 49 of the 50 States the common-law system, as modified by statute, constitutional amendment, or judicial decision governs. Coexisting with the 50 States which make it up, and supreme over them to the extent of its authority under Art. IV of the Constitution, is the National Government. At an early period in the history of this Nation, it was held that there was no federal common law of crimes, United States v. Hudson & Goodwin, 7 Cranch 32 (1812), and since Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), there has been no general common law applicable in federal courts merely by reason of diversity-of-citizenship jurisdiction. Therefore, in order properly to decide this case we must deal not simply with a single, general principle, however just that principle may be in the abstract, but with the complex interplay of the Constitution, statutes, and the facts which form the basis for this litigation.

* * * * *

[7]While we have twice granted certiorari in cases to decide whether mere negligence will support a claim for relief under § 1983, see Procunier v. Navarette, 434 U.S. 555 (1978), and Baker v. McCollan, 443 U.S. 137 (1979), we have in each of those cases found it unnecessary to decide the issue. In Procunier, supra, we held that regardless of whether the § 1983 complaint framed in terms of negligence stated a claim for relief, the defendants would clearly have been entitled to qualified immunity and therefore not liable for damages. In Baker, supra, we held that no deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States had occurred, and therefore it was unnecessary to decide whether mere negligence on the part of the actor would have rendered him liable had there been such a deprivation. These two decisions, however, have not aided the various Courts of Appeals and District Courts in their struggle to determine the correct manner in which to analyze claims such as the present one which allege facts that are commonly thought to state a claim for a common-law tort normally dealt with by state courts, but instead are couched in terms of a constitutional deprivation and relief is sought under § 1983. The diversity in approaches is legion We, therefore, once more put our shoulder to the wheel hoping to be of greater assistance to courts confronting such a fact situation than it appears we have been in the past.

[8]Nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan, supra, we suggested that simply because a wrong was negligently as opposed to intentionally committed did not foreclose the possibility that such action could be brought under § 1983. We explained:

“[The] question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action.” 443 U.S., at 139-140.

[9]Section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, has never been found by this Court to contain a state-of-mind requirement.^[2] The Court recognized as much in Monroe v. Pape, 365 U.S. 167 (1961), when we explained after extensively reviewing the legislative history of § 1983, that

“[it] is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.” Id., at 180.

[10]In distinguishing the criminal counterpart which had earlier been at issue in Screws v. United States, 325 U.S. 91 (1945), the Monroe Court stated:

“In the Screws case we dealt with a statute that imposed criminal penalties for acts ‘willfully’ done. We construed that word in its setting to mean the doing of an act with ‘a specific intent to deprive a person of a federal right.’ 325 U.S., at 103. We do not think that gloss should be put on [§ 1983] which we have here. The word ‘willfully’ does not appear in [§ 1983]. Moreover, [§ 1983] provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the grounds of vagueness. [Section 1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” 365 U.S., at 187.

[11]Both Baker v. McCollan and Monroe v. Pape suggest that § 1983 affords a “civil remedy” for deprivations of federally protected rights caused by persons acting under color of state law without any express requirement of a particular state of mind. Accordingly, in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.

III

[12]Since this Court’s decision in Monroe v. Pape, supra, it can no longer be questioned that the alleged conduct by the petitioners in this case satisfies the “under color of state law” requirement. Petitioners were, after all, state employees in positions of considerable authority. They do not seriously contend otherwise. Our inquiry, therefore, must turn to the second requirement — whether respondent has been deprived of any right, privilege, or immunity secured by the Constitution or laws of the United States.

[13]The only deprivation respondent alleges in his complaint is that “his rights under the Fourteenth Amendment of the Constitution of the United States were violated. That he was deprived of his property and Due Process of Law.” App. 8. As such, respondent’s claims differ from the claims which were before us in Monroe v. Pape, supra, which involved violations of the Fourth Amendment, and the claims presented in Estelle v. Gamble, 429 U.S. 97 (1976), which involved alleged violations of the Eighth Amendment. Both of these Amendments have been held applicable to the States by virtue of the adoption of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643 (1961); Robinson v. California, 370 U.S. 660 (1962). Respondent here refers to no other right, privilege, or immunity secured by the Constitution or federal laws other than the Due Process Clause of the Fourteenth Amendment simpliciter. The pertinent text of the Fourteenth Amendment provides:

“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Emphasis supplied.)

[14]Unquestionably, respondent’s claim satisfies three prerequisites of a valid due process claim: the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation.^[3]

Standing alone, however, these threeelements do not establish a violation of the Fourteenth Amendment. Nothing in that Amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations “without due process of law.” Baker v. McCollan, 443 U.S., at 145. Our inquiry therefore must focus on whether the respondent has suffered a deprivation of property without due process of law. In particular, we must decide whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivations satisfy the requirements of procedural due process.

[15]This Court has never directly addressed the question of what process is due a person when an employee of a State negligently takes his property. In some cases this Court has held that due process requires a predeprivation hearing before the State interferes with any liberty or property interest enjoyed by its citizens. In most of these cases, however, the deprivation of property was pursuant to some established state procedure and “process” could be offered before any actual deprivation took place. For example, in Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), the Court struck down on due process grounds a New York statute that allowed a trust company, when it sought a judicial settlement of its trust accounts, to give notice by publication to all beneficiaries even if the whereabouts of the beneficiaries were known. The Court held that personal notice in such situations was required and stated that “when notice is a person’s due, process which is a mere gesture is not due process.” Id., at 315. More recently, in Bell v. Burson, 402 U.S. 535 (1971), we reviewed a state statute which provided for the taking of the driver’s license and registration of an uninsured motorist who had been involved in an accident. We recognized that a driver’s license is often involved in the livelihood of a person and as such could not be summarily taken without a prior hearing. In Fuentes v. Shevin, 407 U.S. 67 (1972), we struck down the Florida prejudgment replevin statute which allowed secured creditors to obtain writs in ex parte proceedings. We held that due process required a prior hearing before the State authorized its agents to seize property in a debtor’s possession. See also Boddie v. Connecticut, 401 U.S. 371 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970); and Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). In all these cases, deprivations of property were authorized by an established state procedure and due process was held to require predeprivation notice and hearing in order to serve as a check on the possibility that a wrongful deprivation would occur.

[16]We have, however, recognized that postdeprivation remedies made available by the State can satisfy the Due Process Clause. In such cases, the normal predeprivation notice and opportunity to be heard is pretermitted if the State provides a postdeprivation remedy. In North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908), we upheld the right of a State to seize and destroy unwholesome food without a preseizure hearing. The possibility of erroneous destruction of property was outweighed by the fact that the public health emergency justified immediate action and the owner of the property could recover his damages in an action at law after the incident. In Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950), we upheld under the Fifth Amendment Due Process Clause the summary seizure and destruction of drugs without a preseizure hearing. Similarly, in Fahey v. Mallonee, 332 U.S. 245 (1947), we recognized that the protection of the public interest against economic harm can justify the immediate seizure of property without a prior hearing when substantial questions are raised about the competence of a bank’s management. In Bowles v. Willingham, 321 U.S. 503 (1944), we upheld in the face of a due process challenge the authority of the Administrator of the Office of Price Administration to issue rent control orders without providing a hearing to landlords before the order or regulation fixing rents became effective. See also Corn Exchange Bank v. Coler, 280 U.S. 218 (1930); McKay v. McInnes, 279 U.S. 820 (1929); Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928); and Ownbey v. Morgan, 256 U.S. 94 (1921). These cases recognize that either the necessity of quick action by the State or the impracticality of providing any meaningful predeprivation process, when coupled with the availability of some meaningful means by which to assess the propriety of the State’s action at some time after the initial taking, can satisfy the requirements of procedural due process. As we stated in Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974):

“Petitioner asserts that his right to a hearing before his possession is in any way disturbed is nonetheless mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), and Fuentes v. Shevin, 407 U.S. 67 (1972). The pre-Sniadach cases are said by petitioner to hold that ‘the opportunity to be heard must precede any actual deprivation of private property.’ Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pretermination hearing where a full and immediate post-termination hearing is provided. The usual rule has been ‘[where] only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.’ Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931).” Id., at 611 (footnote omitted).

[17]Our past cases mandate that some kind of hearing is required at some time before a State finally deprives a person of his property interests. The fundamental requirement of due process is the opportunity to be heard and it is an “opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965). However, as many of the above cases recognize, we have rejected the proposition that “at a meaningful time and in a meaningful manner” always requires the State to provide a hearing prior to the initial deprivation of property. This rejection is based in part on the impracticability in some cases of providing any preseizure hearing under a state-authorized procedure, and the assumption that at some time a full and meaningful hearing will be available.

[18]The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner’s property as a result of a random and unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under “color of law,” is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation. That does not mean, of course, that the State can take property without providing a meaningful postdeprivation hearing. The prior cases which have excused the prior-hearing requirement have rested in part on the availability of some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities.

[19]A case remarkably similar to the present one is Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932 (1978). There, a prisoner alleged that prison officials “made it possible by leaving the door of Plaintiff’s cell open, for others without authority to remove Plaintiff’s trial transcript from the cell.” 517 F.2d, at 1318. The question presented was whether negligence may support a recovery under § 1983. Then Judge Stevens, writing for a panel of the Court of Appeals for the Seventh Circuit, recognized that the question that had to be decided was “whether it can be said that the deprivation was ‘without due process of law.'” Ibid. He concluded:

“It seems to us that there is an important difference between a challenge to an established state procedure as lacking in due process and a property damage claim arising out of the misconduct of state officers. In the former situation the facts satisfy the most literal reading of the Fourteenth Amendment’s prohibition against ‘State’ deprivations of property; in the latter situation, however, even though there is action ‘under color of’ state law sufficient to bring the amendment into play, the state action is not necessarily complete. For in a case such as this the law of Illinois provides, in substance, that the plaintiff is entitled to be made whole for any loss of property occasioned by the unauthorized conduct of the prison guards. We may reasonably conclude, therefore, that the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.” Id., at 1319.

[20]We believe that the analysis recited above in Bonner is the proper manner in which to approach a case such as this. This analysis is also quite consistent with the approach taken by this Court in Ingraham v. Wright, 430 U.S. 651 (1977), where the Court was confronted with the claim that corporal punishment in public schools violated due process. Arguably, the facts presented to the Court in Ingraham were more egregious than those presented here inasmuch as the Court was faced with both an intentional act (as opposed to negligent conduct) and a deprivation of liberty. However, we reasoned:

“‘At some point the benefit of an additional safeguard to the individual affected . . . and to society in terms of increased assurance that the action is just, may be outweighed by the cost.’ Mathews v. Eldridge, 424 U.S., at 348. We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal. Imposing additional administrative safeguards as a constitutional requirement might reduce that risk marginally, but would also entail a significant intrusion into an area of primary educational responsibility.” Id., at 682. (Emphasis supplied.)

IV

[21]Application of the principles recited above to this case leads us to conclude the respondent has not alleged a violation of the Due Process Clause of the Fourteenth Amendment. Although he has been deprived of property under color of state law, the deprivation did not occur as a result of some established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure. There is no contention that the procedures themselves are inadequate nor is there any contention that it was practicable for the State to provide a predeprivation hearing. Moreover, the State of Nebraska has provided respondent with the means by which he can receive redress for the deprivation. The State provides a remedy to persons who believe they have suffered a tortious loss at the hands of the State. See Neb. Rev. Stat. § 81-8,209 et seq. (1976). Through this tort claims procedure the State hears and pays claims of prisoners housed in its penal institutions. This procedure was in existence at the time of the loss here in question but respondent did not use it. It is argued that the State does not adequately protect the respondent’s interests because it provides only for an action against the State as opposed to its individual employees, it contains no provisions for punitive damages, and there is no right to a trial by jury. Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to satisfy the requirements of due process.

[22]Our decision today is fully consistent with our prior cases. To accept respondent’s argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under “color of law” into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning. Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983. Such reasoning “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701 (1976). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.

Accordingly, the judgment of the Court of Appeals is

Reversed.

* * * * *

Justice Blackmun, concurring.

[23]While I join the Court’s opinion in this case, I write separately to emphasize my understanding of its narrow reach. This suit concerns the deprivation only of property and was brought only against supervisory personnel, whose simple “negligence” was assumed but, on this record, not actually proved. I do not read the Court’s opinion as applicable to a case concerning deprivation of life or of liberty. Cf. Moore v. East Cleveland, 431 U.S. 494 (1977). I also do not understand the Court to intimate that the sole content of the Due Process Clause is procedural regularity. I continue to believe that there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process. See, e. g., Boddie v. Connecticut, 401 U.S. 371 (1971); Roe v. Wade, 410 U.S. 113 (1973).

[24]Most importantly, I do not understand the Court to suggest that the provision of “postdeprivation remedies,” ante, at 538, within a state system would cure the unconstitutional nature of a state official’s intentional act that deprives a person of property. While the “random and unauthorized” nature of negligent acts by state employees makes it difficult for the State to “provide a meaningful hearing before the deprivation takes place,” ante, at 541, it is rare that the same can be said of intentional acts by state employees. When it is possible for a State to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so. See Sniadach v. Family Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970). In the majority of such cases, the failure to provide adequate process prior to inflicting the harm would violate the Due Process Clause. The mere availability of a subsequent tort remedy before tribunals of the same authority that, through its employees, deliberately inflicted the harm complained of, might well not provide the due process of which the Fourteenth Amendment speaks.

Justice Powell, concurring in the result.

[25]This case presents the question whether a state prisoner may sue to recover damages under 42 U. S. C. § 1983, alleging that a violation of the Due Process Clause of the Fourteenth Amendment occurred when two shipments mailed to him were lost due to the negligence of the prison’s warden and “hobby manager.” Unlike the Court, I do not believe that such negligent acts by state officials constitute a deprivation of property within the meaning of the Fourteenth Amendment, regardless of whatever subsequent procedure a State may or may not provide. I therefore concur only in the result.

* * * * *

[26]A “deprivation” connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss.^[4] The most reasonable interpretation of the Fourteenth Amendment would limit due process claims to such active deprivations.^[5] This is the view adopted by an overwhelming number of lower courts, which have rejected due process claims premised on negligent acts without inquiring into the existence or sufficiency of the subsequent procedures provided by the States. In addition, such a rule would avoid trivializing the right of action provided in § 1983.

Similarly, in Baker v. McCollan, 443 U.S. 137 (1979), the Court reviewed a claimed violation of due process occurring when a sheriff arrested the individual named in an arrest warrant and failed for a time to realize that the warrant itself had named the wrong person. The Court there noted that that provision was enacted to deter real abuses by state officials in the exercise of governmental powers. It would make no sense to open the federal courts to lawsuits where there has been no affirmative abuse of power, merely a negligent deed by one who happens to be acting under color of state law. See n. 12, infra.^[6]

* * * * *

[27]Such an approach has another advantage; it avoids a somewhat disturbing implication in the Court’s opinion concerning the scope of due process guarantees. The Court analyzes this case solely in terms of the procedural rights created by the Due Process Clause. Finding state procedures adequate, it suggests that no further analysis is required of more substantive limitations on state action located in this Clause. Cf. Paul v. Davis, supra, at 712-714 (assessing the claim presented in terms of the “substantive aspects of the Fourteenth Amendment”); Ingraham v. Wright, 430 U.S. 651, 679, n. 47 (1977) (leaving open the question whether “corporal punishment of a public school child may give rise to an independent federal cause of action to vindicate substantive rights under the Due Process Clause”).

“the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place,” id., at 140, n. 1, and went on to hold that there had been no deprivation of liberty without due process of law. The Court reasoned that there is no duty to investigate “every claim of innocence,” id., at 146, and no constitutional requirement of an “error-free investigation of such a claim,” ibid. It relied on the fact that the sheriff had acted reasonably in relying on a facially valid arrest warrant, thus implicitly distinguishing a case involving an intentional deprivation of liberty without cause.

To be sure, even where there has been an intentional deprivation of property, due process claims also must satisfy the requirement that the act be sufficiently linked to an official’s state-created duties or powers to constitute “state action.” See n. 10, infra.

[28]The Due Process Clause imposes substantive limitations on state action, and under proper circumstances ^[7] these limitations may extend to intentional and malicious deprivations of liberty ^[8] and property ^[9] even where compensation is available under state law. The Court, however, fails altogether to discuss the possibility that the kind of state action alleged here constitutes a violation of the substantive guarantees of the Due Process Clause. As I do not consider a negligent act the kind of deprivation that implicates the procedural guarantees of the Due Process Clause, I certainly would not view negligent acts as violative of these substantive guarantees. But the Court concludes that there has been such a deprivation. And yet it avoids entirely the question whether the Due Process Clause may place substantive limitations on this form of governmental conduct.

[29]In sum, it seems evident that the reasoning and decision of the Court today, even if viewed as compatible with our precedents, create new uncertainties as well as invitations to litigate under a statute that already has burst its historical bounds.^[10]

Justice Marshall, concurring in part and dissenting in part.

[30]I join the opinion of the Court insofar as it holds that negligent conduct by persons acting under color of state law may be actionable under 42 U. S. C. § 1983. Ante, at 534-535. I also agree with the majority that in cases involving claims of negligent deprivation of property without due process of law, the availability of an adequate postdeprivation cause of action for damages under state law may preclude a finding of a violation of the Fourteenth Amendment. I part company with the majority, however, over its conclusion that there was an adequate state-law remedy available to respondent in this case. My disagreement with the majority is not because of any shortcomings in the Nebraska tort claims procedure.^[11]

Rather, my problem is with the majority’s application of its legal analysis to the facts of this case.

[31]It is significant, in my view, that respondent is a state prisoner whose access to information about his legal rights is necessarily limited by his confinement. Furthermore, there is no claim that either petitioners or any other officials informed respondent that he could seek redress for the alleged deprivation of his property by filing an action under the Nebraska tort claims procedure. This apparent failure takes on additional significance in light of the fact that respondent pursued his complaint about the missing hobby kit through the prison’s grievance procedure. ^[12]

In cases such as this, I believe prison officials have an affirmative obligation to inform a prisoner who claims that he is aggrieved by official action about the remedies available under state law. If they fail to do so, then they should not be permitted to rely on the existence of such remedies as adequate alternatives to a § 1983 action for wrongful deprivation of property. Since these prison officials do not represent that respondent was informed about his rights under state law, I cannot join in the judgment of the Court in this case.

[32]Thus, although I agree with much of the majority’s reasoning, I would affirm the judgment of the Court of Appeals.

Footnotes

1. As we explained in Board of Regents v. Roth, 408 U.S. 564 (1972), property interests “are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id., at 577. It is not contended that under Nebraska law respondent does not enjoy a property interest in the hobby materials here in question. ↵

    

2. Title 18 U. S. C. § 242 provides in pertinent part: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.” (Emphasis supplied.) ↵

    

3. Petitioners argue that even if a negligent deprivation of respondent’s property occurred, there is no evidence in the record of negligence on their part. There is merit to petitioners’ arguments. Petitioners were not personally involved in the handling of the packages and respondent’s basic allegation appears to be that subordinates of petitioners violated established procedures which, if properly followed, would have ensured the proper delivery of respondent’s packages. In the past, this Court has refused to accept § 1983 actions premised on theories of respondeat superior. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). On the other hand, there is no indication in the record that the petitioners ever raised in the District Court the argument that the loss of property was not caused by their negligence. Certainly, the District Court did not consider this an open question. In such a context, and with little or no factual development at the trial level, we can only accept for purposes of this opinion the District Court’s assumption that petitioners were negligent and that this negligence contributed to respondent’s loss. ↵

    

4. According to Webster’s New International Dictionary of the English Language (2d ed. 1945), to “deprive” is to “dispossess; bereave; divest; to hinder from possessing; debar; shut out.” ↵

    

5. In analogous contexts, we have held that the intent of state officials is a relevant factor to consider in determining whether an individual has suffered a denial of due process. In United States v. Lovasco, 431 U.S. 783, 790 (1977), involving preindictment prosecutorial delay, we held that “proof of prejudice is generally a necessary but not sufficient element of a due process claim, and … the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.”

   Similarly, in Baker v. McCollan, 443 U.S. 137 (1979), the Court reviewed a claimed violation of due process occurring when a sheriff arrested the individual named in an arrest warrant and failed for a time to realize that the warrant itself had named the wrong person. The Court there noted that “the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place,” id., at 140, n. 1, and went on to hold that there had been no deprivation of liberty without due process of law. The Court reasoned that there is no duty to investigate “every claim of innocence,” id., at 146, and no constitutional requirement of an “error-free investigation of such a claim,” ibid. It relied on the fact that the sheriff had acted reasonably in relying on a facially valid arrest warrant, thus implicitly distinguishing a case involving an intentional deprivation of liberty without cause. To be sure, even where there has been an intentional deprivation of property, due process claims also must satisfy the requirement that the act be sufficiently linked to an official’s state-created duties or powers to constitute “state action.” See n.10, infra. ↵

    

6. We have previously expressed concerns about the prospect that the Due Process Clause may become a vehicle for federal litigation of state torts. In Paul v. Davis, supra, we held that an official action damaging the reputation of a private citizen, although an actionable tort under state law, did not constitute a deprivation of “liberty” within the meaning of the Fourteenth Amendment. In so holding we relied principally on the fact that the individual’s interest in his reputation was not accorded a “legal guarantee of present enjoyment” under state law, since it was “simply one of a number [of interests] which the State may protect against injury by virtue of its tort law.” Id., at 711-712. Attention to the “guarantees” provided by state law is at least as appropriate in a case involving an alleged deprivation of “property.” It is clear that the hobby kit was respondent’s “property.” But it also is clear that under state law no remedy other than tort law protects property from interferences caused by the negligence of others. The reasoning of Paul v. Davis would suggest, therefore, that the enjoyment of property free of negligent interference is not sufficiently “guaranteed” by state law to justify a due process claim based on official negligence. A State perhaps could constitutionalize certain negligent actions by state officials by criminalizing negligence, thus extending its guarantee to this kind of interference. Instead, the States merely have created systems for civil compensation of tort victims. In this sense, state law draws a clear distinction between negligently caused injuries and intentional thefts or assaults. ↵

    

7. Even intentional injuries inflicted by state officials must be “state action” to implicate the due process guarantees, and must be “under color of” state law in order to be actionable under § 1983. In this area we have drawn a distinction between mere “torts of state officials” and “acts done ‘under color’ of law . . . which deprived a person of some right secured by the Constitution or laws of the United States.” Screws v. United States, 325 U.S. 91, 109 (1945) (plurality opinion of Douglas, J.) (discussing the criminal analogue of § 1983 — now codified as 18 U. S. C. § 242). Actionable deprivations must be based on “‘[m isuse] of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” Ibid. (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). See also Screws, supra, at 134 (Rutledge, J., concurring in result) (the Constitution protects the “right not to be deprived of life or liberty by a state officer who takes it by abuse of his office and its power”) (emphasis added). W here state officials cause injuries in ways that are equally available to private citizens, constitutional issues are not necessarily raised. As Justice Douglas put it in Screws: “The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.” 325 U.S., at 108. ↵

    

8. See, e. g., Rochin v. California, 342 U.S. 165 (1952); Hall v. Tawney, 621 F.2d 607, 613 (CA4 1980) (corporal punishment of students may have violated due process if it “amounted to a brutal and inhumane abuse of official power literally shocking to the conscience”); Bellows v. Dainack, 555 F.2d 1105, 1106, n. 1 (CA2 1977) (use of excessive force by policeman during the course of an arrest constitutes a deprivation of “liberty” without due process). ↵

    

9. See, e. g., Kimbrough v. O’Neil, 545 F.2d 1059, 1061 (CA7 1976) (en banc) (“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”); Carter v. Estelle, 519 F.2d 1136, 1136-1137 (CA5 1975) (per curiam) (same). See also San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 656, n. 23 (1981) (Brennan, J., dissenting) (when property is taken by the government but not in furtherance of a “public use,” “the government entity may not be forced to pay just compensation under the Fifth Amendment, [but] the landowner may nevertheless have a damages cause of action under 42 U. S. C. § 1983 for a Fourteenth Amendment due process violation”). ↵

    

10. Section 1983 was enacted in 1871 as one of the statutes intended to implement the Fourteenth Amendment. For many years it remained a little-used, little-known section of the Code. In the past two decades, however, resourceful counsel and receptive courts have extended its reach vastly. This statute with a clearly understood and commendable purpose no longer is confined to deprivations of individual rights as intended in 1871. As a result, § 1983 has become a major vehicle for general litigation in the federal courts by individuals and corporations.

    Professor Christina Whitman recently has addressed this expansion of § 1983 with a comprehensive assessment of arguable pluses and minuses. See W hitman, Constitutional Torts, 79 Mich. L. Rev. 5 (1980). There will be no pluses, however, if the striking escalation of suits under § 1983 against state and local officials is augmented by suits based on negligent conduct. Professor W hitman noted, for example, that civil rights petitions by state prisoners in federal court increased from 218 cases in 1966 to 11,195 in 1979. Id., at 6. See also the Annual Report of the Director of the Administrative Office of the U.S. Courts 62 (1980), reporting a further increase in this number to 12,397 in 1980. The societal costs of using this statute for a purpose never contemplated are high indeed:

    “First, the existence of the statutory cause of action means that every expansion of constitutional rights [through § 1983] will increase the caseload of already overburdened federal courts. This increase dilutes the ability of federal courts to defend our most significant rights. Second, every [such] expansion . . . displaces state lawmaking authority by diverting decision-making to the federal courts.” Whitman, supra, at 25.

    The present case, involving a $23 loss, illustrates the extent to which constitutional law has been trivialized, and federal courts often have been converted into small-claims tribunals. There is little justification for making such a claim a federal case, requiring a decision by a district court, an appeal as a matter of right to a court of appeals, and potentially, consideration of a petition for certiorari in this Court. It is not in the interest of claimants or of society for disputes of this kind to be resolved by litigation that may take years, particularly in an overburdened federal system that never was designed to be utilized in this way. Congress, recognizing the problem with respect to prisoner petitions, enacted last year the Civil Rights of Institutionalized Persons Act, Pub. L. 96-247, 94 Stat. 349, authorizing federal courts to continue§ 1983 prisoner cases for up to 90 days to allow recourse to administrative remedies. The grievance procedures, however, must be certified by the Attorney General or determined by the court to be incompliance with not insubstantial procedural requirements. Id., § 7, 42 U. S. C. § 1997e (1976 ed., Supp. IV). As a result, the Act continues to allow resort to the federal courts in many cases of this kind. In view of increasing damages-suit litigation under § 1983, and the inability of courts to identify principles that can be applied consistently, perhaps the time has come for a revision of this century-old statute–a revision that would clarify its scope while preserving its historical function of protecting individual rights from unlawful state action. ↵

     

11. To be sure, the state remedies would not have afforded respondent all the relief that would have been available in a § 1983 action. See ante, at 543-544. I nonetheless agree with the majority that “they are sufficient to satisfy the requirements of due process.” Ante, at 544. ↵

     

12. In fact, the prison officials did not raise the issue of the availability of a state-law remedy in either the District Court or the Court of Appeals. The issue was first presented in the petition for rehearing filed in the Court of Appeals. ↵

Notes on Parratt v. Taylor

1. What is the standard of culpability in Section 1983 actions according to Parratt?The Supreme Court had previously granted certiorari in Baker v. McCollan, 443 U.S. 137 (1979), to consider whether negligent conduct is actionable under Section 1983. Baker arose out of the arrest and confinement of Linnie McCollan pursuant to a warrant intended for his brother Leonard. Linnie brought a Section 1983 action alleging that the sheriff’s negligent failure to establish proper identification procedures deprived him of his liberty without due process of law. The Supreme Court, however, found that persons arrested pursuant to a valid warrant are not entitled to a separate judicial determination of probable cause to detain them pending trial. Because McCollan had not suffered an invasion of his Fourteenth Amendment rights, the Court concluded that it had no cause to determine the degree of culpability necessary to establish liability under Section 1983.Can Parratt be reconciled with Baker v. McCollan? Is the Court’s ruling on the culpability issue in Parratt dictum? But see Wood v. Strickland, 420 U.S. 308, 314 (1975) (“[T]he immunity question involves the construction of a federal statute, and our practice is to deal with possibly dispositive statutory issues before questions turning on the construction of the Constitution.”); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48 (1936) (Brandeis, J., concurring).
2. As Parratt v. Taylor exemplifies, most of the debate surrounding the standard of culpability under Section 1983 focused upon whether the statute allows recovery for negligent, as opposed to reckless or intentional, deprivations of constitutional rights. The courts generally did not address the equally important question of whether Section 1983 imposes “strict liability” for invasions of rights protected by the Constitution.
   1. Does Parratt require that, in addition to proving a constitutional violation caused by a person acting under color of state law, a Section 1983 plaintiff must prove that the government official acted negligently?
   2. What standard of culpability is imposed by the language of 42 U.S.C. § 1983? See Gomez v. Toledo, 446 U.S. 635, 640 (1980) (“By the plain terms of §1983, two–and only two–allegations are required in order to state a claim under the statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who deprived him of that right acted under color of state or territorial law.”).
   3. What standard of culpability is indicated by the following excerpts from the legislative history of Section 1983?
      1. Senator Edmunds, manager of the bill in the Senate, stated that the Act was “so very simple and really reenacting the Constitution.” Cong. Globe, 42d Cong., 1st Sess., 569 (1871) [cited in Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 685 (1978)].
      2. Representative Bingham declared the bill’s purpose to be:
         

         The enforcement…of the Constitution on behalf of every individual citizen of the Republic…to the extent of the rights guaranteed to him by the Constitution.

         Globe App. 81 [cited in Monell, 436 U.S. 658, 685 n.45].

      3. Senator Thurman, opposing the bill, remarked:
         

         It authorizes any person who is deprived of any right, privilege, or immunity secured to him by the Constitution of the United States, to bring an action against the wrongdoer in the Federal Courts, and  without any limit whatsoever as to the amount in controversy. The deprivation may be of the slightest conceivable character…

         [T]here is no limitation whatsoever upon the terms that are employed (in the bill), and they are as comprehensive as can be used.

         Globe App. at 216-217 [cited in Monell, 436 U.S. 658, 385 n.45 and in Monroe v. Pape, 365 U.S. at 179-80].

      4. Representative Shellenbarger described how the courts should interpret § 1:
         

         The Act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people…Chief Justice Jay and also Story say:

         “Where a power is remedial in its nature there is much reason to contend that it ought to be construed liberally, and it is generally adopted in the interpretation of laws.” 1 Story on Constitution, sec. 429.

         Globe App., at 68 [cited in Monell, 436 U.S. at 684].

3. How does the Supreme Court in Parratt distinguish injuries inflicted by state officials that are to be redressed by state tort law from violations of the Fourteenth Amendment cognizable under Section 1983? Has the Court pre- empted Section 1983 actions for every constitutional infringement whenever there is an adequate post-deprivation state remedy?
   1. Justice Blackmun’s concurrence in Parratt emphasized the “narrow reach” of the Court’s opinion, including the limiting fact that the “suit concerns the deprivation only of property.” 451 U.S. at 545. The lower federal courts subsequently divided over the issue of whether the availability of an adequate state post-deprivation remedy affords due process of law for deprivations of liberty as opposed to property. Compare Thibodeaux v. Bordelon, 740 F.2d 329, 337-38 (5th Cir. 1984) with Wilson v. Beebe, 770 F.2d 578, 584 (6th Cir. 1985) (en banc).In Zinermon v. Burch, 494 U.S. 113 (1990) Justice Blackmun authored the majority opinion holding the Parratt analysis equally applicable to claimed deprivations of liberty:
      

      It is true that Parratt…concerned deprivations of property. It is also true that Burch’s interest in avoiding six months confinement is of an order different from inmate Parratt’s interest in mail-order materials valued at $23.50. But the reasoning of Parratt…emphasizes the State’s inability to provide pre-deprivation process because of the random and unpredictable nature of the deprivation, not the fact that only property losses were at stake. In situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking. See Loudermill, 470 U.S., at 542, 105 S. Ct., at 1493; Memphis Light, 436 U.S. at 18, 98 S. Ct., at 1564; Fuentes, 407 U.S., at 80-84, 92 S. Ct., at 1018. Conversely, in situations where a predeprivation hearing is unduly burdensome in proportion to the liberty interest at stake, see Ingraham, 430 U.S., at 682, 97 S. Ct., at 1418, or where the state is truly unable to anticipate and prevent a random deprivation of a liberty interest, postdeprivation remedies might satisfy due process. Thus, the fact that a deprivation of liberty is involved in this case does not automatically preclude application of the Parratt rule.

      Id. at 132.

   2. The Parratt Court was confronted with a negligent, unintentional deprivation of property. In Hudson v. Palmer, 468 U.S. 517 (1984), the Court held that the intentional destruction of a prisoner’s personal property in the course of a cell shakedown similarly does not violate the Fourteenth Amendment if an adequate post-deprivation state remedy exists
      

      The underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, pre-deprivation procedures are simply “impracticable” since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the  “practicability” of affording pre-deprivation process is concerned. The State can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signaling his intent.

      Hudson v. Palmer, 468 U.S. 517, 533 (1984).

   3. Although the Supreme Court has extended Parratt to random and unauthorized intentional acts of state employees, it has also held that a person deprived of property pursuant to an “established state procedure” is not relegated to post-deprivation state remedies. Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).Laverne Logan, allegedly fired because of a physical disability, filed a charge of discrimination with the Illinois Fair Employment Practices Commission in compliance with the Illinois Fair Employment Practices Act. The Commission, however, inadvertently scheduled a required fact-finding conference five days after the statute’s prescribed 120-day time limit. Upon motion by the employer, the discrimination charge was dismissed because of the Commission’s failure to timely convene the conference.  Logan challenged the dismissal of the charge as a deprivation of a protected property interest in violation of the Due Process Clause of the Fourteenth Amendment. Id. at 428.The employer argued that even if Logan had been deprived of a property right, under Parratt due process was afforded by a post-deprivation state tort action under the Illinois Court of Claims Act. The Supreme Court rejected the employer’s contention, reasoning as follows:
      

      This argument misses Parratt’s point. In Parratt, the Court emphasized that it was dealing with “a tortious loss of…property as a result of a random and unauthorized act by a state employee…not a result of some established state procedure.” 451 U.S., at 541, 101 S. Ct., at 1915. Here, in contrast, it is the state system itself that destroys a complainant’s property interest, by operation of law, whenever the Commission fails to convene a timely conference – whether the Commission’s action is taken through negligence, maliciousness, or otherwise. Parratt was not designed to reach such a situation. See id., at 545, 101 S. Ct., at 1981 (second concurring opinion). Unlike the complainant in Parratt, Logan is challenging not the Commission’s error, but the “established state procedure” that destroys his entitlement without according him proper procedural safeguards.

      451 U.S. at 435-36.

   4. The Court further circumscribed the reach of Parratt in Zinermon v. Burch, 494 U.S. 113 (1990), a Section 1983 action alleging a deprivation of liberty arising out of respondent’s admission to a state hospital for treatment of mental illness. Burch did not attack the constitutionality of the Florida statutes that authorized his admission to the hospital, consequently he could not avoid the dictates of Parratt by claiming his deprivation was caused by an established state procedure.  Instead, Burch averred that his admission as a voluntary patient contravened the Florida statutory scheme because the officials involved in his admission and treatment knew or should have known he was incompetent to make an informed decision and therefore should have afforded Burch the procedural safeguards provided by the state’s involuntary placement protocolIn a 5-4 opinion, the Supreme Court held that Burch was not relegated to state post-deprivation remedies, finding Parratt distinguishable on three grounds:
      

      First, petitioners cannot claim that the deprivation of Burch’s liberty was unpredictable.

      * * * * *

      Second, we cannot say that predeprivation process was impossible here.

      * * * * *

      Third, petitioners cannot characterize their conduct as “unauthorized” in the sense the term is used in Parratt and Hudson. The State delegated to them the power and authority to effect the very deprivation complained of here, Burch’s confinement in a mental hospital, and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement. In Parratt and Hudson, the state employees had no similar broad authority to deprive prisoners of their personal property, and no similar duty to initiate (for persons unable to protect their own interests) the procedural safeguards required before deprivations occur. The deprivation here is “unauthorized” only in the sense that it was not an act sanctioned by state law, but, instead, was a “depriv[ation] of constitutional rights … by an official’s abuse of his position.” Monroe, 365 U.S., at 172.

      We conclude that petitioners cannot escape § 1983 liability by characterizing their conduct as a “random, unauthorized” violation of Florida law which the State was not in a position to predict or avert, so that all the process Burch could possibly be due is a postdeprivation damages remedy. Burch, according to the allegations of his complaint, was deprived of a substantial liberty interest without either valid consent or an involuntary placement hearing, by the very state officials charged with the power to deprive mental patients of their liberty and the duty to implement procedural safeguards. Such a deprivation is foreseeable, due to the nature of mental illness, and will occur, if at all, at a predictable point in the admission process. Unlike Parratt and Hudson, this case does not represent the special instance of the Mathews due process analysis where postdeprivation safeguards would be of use in preventing the kind of deprivation alleged.

      494 U.S. at 136-139.

      Justice O’Connor’s dissenting opinion repudiated the majority’s effort to find Parratt inapplicable to deprivations caused by state officials with delegated authority:

      [T]he Court suggests that this case differs from Parratt and Hudson because petitioners possessed a sort of delegated power. See ante, at 988-990. Yet petitioners no more had the delegated power to depart from the admission procedures and requirements than did the guard in Hudson to exceed the limits of his established search and seizure authority, or the prison official in Parratt wrongfully to withhold or misdeliver mail. Petitioner’s delegated duty to act in accord with Florida’s admission procedures is akin to the mailhandler’s duty to follow and implement the procedures surrounding delivery of packages, or the guard’s duty to conduct the search properly. In the appropriate circumstances and pursuant to established procedures, the guard in Hudson was charged with seizing property pursuant to a search. The official in Parratt no doubt possessed some power to withhold certain packages from prisoners. Parratt and Hudson distinguish sharply between deprivations caused by unauthorized acts and those occasioned by established state procedures. See Hudson, 468 U.S. at 532, 104 S. Ct. at 3203; Parratt, 451 U.S., at 541, 101 S. Ct., at 1916; accord Logan, 455 U.S. at 435-436, 102 S. Ct., at 1157-58. The delegation argument blurs this line and ignores the unauthorized nature of petitioner’s alleged departure from established practices.

      494 U.S. at 145-46.

   5. Following Parratt, the lower courts uniformly held that the availability of state remedies will not preclude claimed invasions of substantive rights, as opposed to post-deprivation violations of procedural due process. As the court explained in Gilmere v. City of Atlanta, 774 F.2d 1495, 1500 (11th Cir. 1985), cert. denied, 476 U.S. 1124 (1986),

    

   Unlike procedural due process claims, which challenge the adequacy of the procedures used by the government in deciding how to treat individuals, substantive due process claims allege that certain governmental conduct would remain unjustified even if it were accompanied by the most stringent of procedural safeguards. Such substantive claims are outside the scope of Parratt because the constitutional violation is complete at the moment when the harm occurs. The existence of state post-deprivation remedies therefore has no bearing on whether the plaintiff has a constitutional claim.

   In Zinermon v. Burch, 494 U.S. 113, 124-25 (1990), the Supreme Court acknowledged this significant limit on the reach of the Parratt doctrine:

   In Monroe, this Court rejected the view that § 1983 applies only to violations of constitutional rights that are authorized by state law, and does not reach abuses of state authority that are forbidden by the State’s statutes or Constitution or are torts under the State’s common law.

   * * * * *

   Thus, overlapping state remedies are generally irrelevant to the question of the existence of a cause of action under § 1983.

   * * * * *

   This general rule applies in a straightforward way to two of the three kinds of § 1983 claims that may be brought against the State under the Due Process Clause of the Fourteenth Amendment. First, the Clause incorporates many of the specific protections defined in the Bill of Rights. A plaintiff may bring suit under § 1983 for state officials’ violation of his rights to, e.g., freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions “regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S., at 331. As to these two types of claims, the constitutional violation actionable under § 1983 is complete when the wrongful action is taken. Id., at 338 (Stevens, J., concurring in judgments). A plaintiff, under Monroe v. Pape, may invoke § 1983 regardless of any state- tort remedy that might be available to compensate him for the deprivation of these rights.

    

   494 U.S. at 124-25.  See also Manuel v. City of Joliet, Illinois, 139 S. Ct. 2777 (2017) (Holding that allegation that arrest and pretrial detention were based on made-up evidence is governed by Fourth Amendment rather than Due Process Clause, and reversing lower court ruling that plaintiff who filed Section 1983 action was relegated to adequate state law remedy). But see Albright v. Oliver, 510 U.S. 266, 283-285 (1994) (Kennedy, J. concurring) (where injury is caused by a random and unauthorized act, post-deprivation state remedy bars substantive as well as procedural due process claim); Peter J. Rubin, Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights, 103 COLUM. L. REV. 833, 872-892 (2003).

4. The assertion that due process was supplied by an adequate post-deprivation state remedy was not raised by the petitioners in Parratt until their petition for rehearing filed in the court of appeals. In Prudential Federal Savings and Loan Association
   1. Flanigan, 478 U.S. 1311 (1986), the petitioners made an application for a writ of injunction pending appeal raising constitutional issues. These issues, however, had not been presented to the state’s highest court until a petition for rehearing.

   Justice Rehnquist, serving as Circuit Justice, denied the application, ruling the claims were not properly presented to the Supreme Court. Justice Rehnquist relied on the seemingly established rule that “‘[q]uestions first presented to the highest State Court on a petition for rehearing came too late for consideration here…’” Id., citing Radio Station WOW v. Johnson, Inc., 326 U.S. 120, 128 (1945).

   Why did the court entertain the adequacy of post-deprivation state remedies argument in Parratt?

5. What criteria must a post-deprivation state court remedy fulfill to satisfy the Due Process Clause of the Fourteenth Amendment? Must the state remedy be equally effective to that afforded by Section 1983? Cf. Carlson v. Green, 446 U.S. 14 (1980). The Supreme Court granted certiorari in Daniels v. Williams, 474 U.S. 327 (1986) to determine, among other things, whether a post-deprivation state cause of action accords due process where recovery may be barred by a sovereign immunity defense.

DANIELS v. WILLIAMS, 474 U.S. 327 (1986).

Justice Rehnquist delivered the opinion of the Court.

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[1]In this § 1983 action, petitioner seeks to recover damages for back and ankle injuries allegedly sustained when he fell on a prison stairway. He claims that, while an inmate at the city jail in Richmond, Virginia, he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail. Respondent’s negligence, the argument runs, “deprived” petitioner of his “liberty” interest in freedom from bodily injury, see Ingraham v. Wright, 430 U.S. 651, 673 (1977); because respondent maintains that he is entitled to the defense of sovereign immunity in a state tort suit, petitioner is without an “adequate” state remedy, cf. Hudson v. Palmer, 468 U.S. 517, 534-536 (1984). Accordingly, the deprivation of liberty was without “due process of law.”

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[2]In Parratt v. Taylor, we granted certiorari, as we had twice before, “to decide whether mere negligence will support a claim for relief under § 1983.” 451 U.S., at 532. After examining the language, legislative history, and prior interpretations of the statute, we concluded that § 1983, unlike its criminal counterpart, 18 U.S.C. § 242, contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right. Id., at 534-535. We adhere to that conclusion. But in any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim. See, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause); Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“deliberate indifference” to prisoner’s serious illness or injury sufficient to constitute cruel and unusual punishment under the Eighth Amendment).

[3]In Parratt, before concluding that Nebraska’s tort remedy provided all the process that was due, we said that the loss of the prisoner’s hobby kit, “even though negligently caused, amounted to a deprivation [under the Due Process Clause].” 451 U.S., at 536-537. Justice Powell, concurring in the result, criticized the majority for “[passing] over” this important question of the state of mind required to constitute a “deprivation” of property. Id., at 547. He argued that negligent acts by state officials, though causing loss of property, are not actionable under the Due Process Clause. To Justice Powell, mere negligence could not “[work] a deprivation in the constitutional sense.” Id., at 548 (emphasis in original). Not only does the word “deprive” in the Due Process Clause connote more than a negligent act, but we should not “open the federal courts to lawsuits where there has been no affirmative abuse of power.” Id., at 548-549; see also id., at 545 (Stewart, J., concurring) (“To hold that this kind of loss is a deprivation of property within the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to distort the meaning and intent of the Constitution”). Upon reflection, we agree and overrule Parratt to the extent that it states that mere lack of due care by a state official may “deprive” an individual of life, liberty, or property under the Fourteenth Amendment.

[4]The Due Process Clause of the Fourteenth Amendment provides: “[Nor] shall any State deprive any person of life, liberty, or property, without due process of law.” Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E.g., Davidson v. New Orleans, 96 U.S. 97 (1878) (assessment of real estate); Rochin v. California, 342 U.S. 165 (1952) (stomach pumping); Bell v. Burson, 402 U.S. 535 (1971) (suspension of driver’s license); Ingraham v. Wright, 430 U.S. 651 (1977) (paddling student); Hudson v. Palmer, 468 U.S. 517 (1984) (intentional destruction of inmate’s property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 HARV. L. REV. 366, 368 (1911), was “intended to secure the individual from the arbitrary exercise of the powers of government,” Hurtado v. California, 110 U.S. 516, 527 (1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819)). See also Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U.S. 114, 123 (1889)”); Parratt, supra, at 549 (Powell, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to “deprive any person of life, liberty, or property,” the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement them, e.g., Rochin, supra, it serves to prevent governmental power from being “used for purposes of oppression,” Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856) (discussing Due Process Clause of Fifth Amendment).

[5]We think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate’s property, are quite remote from the concerns just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law.

[6]The Fourteenth Amendment is a part of a Constitution generally designed to allocate governing authority among the Branches of the Federal Government and between that Government and the States, and to secure certain individual rights against both State and Federal Government. When dealing with a claim that such a document creates a right in prisoners to sue a government official because he negligently created an unsafe condition in the prison, we bear in mind Chief Justice Marshall’s admonition that “we must never forget, that it is a constitution we are expounding,” McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original). Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that “‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,'” Paul v. Davis, 424 U.S. 693, 701 (1976), quoted in Parratt v. Taylor, 451 U.S., at 544.

[7]The only tie between the facts of this case and anything governmental in nature is the fact that respondent was a sheriff’s deputy at the Richmond city jail and petitioner was an inmate confined in that jail. But while the Due Process Clause of the Fourteenth Amendment obviously speaks to some facets of this relationship, see, e.g., Wolff v. McDonnell, supra, we do not believe its protections are triggered by lack of due care by prison officials. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U.S. 97, 106 (1976), and “false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.” Baker v. McCollan, 443 U.S. 137, 146 (1979). Where a government official’s act causing injury to life, liberty, or property is merely negligent, “no procedure for compensation is constitutionally required.” Parratt, supra, at 548 (Powell, J., concurring in result) (emphasis added).^[1][8]That injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectible legal interests. The enactment of tort claim statutes, for example, reflects the view that injuries caused by such negligence should generally be redressed.^[2] It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns.

[9]In support of his claim that negligent conduct can give rise to a due process “deprivation,” petitioner makes several arguments, none of which we find persuasive. He states, for example, that “it is almost certain that some negligence claims are within § 1983,” and cites as an example the failure of a State to comply with the procedural requirements of Wolff v. McDonnell, supra, before depriving an inmate of good-time credit. We think the relevant action of the prison officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause. But we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold, as we do, that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment.

[10]Petitioner also suggests that artful litigants, undeterred by a requirement that they plead more than mere negligence, will often be able to allege sufficient facts to support a claim of intentional deprivation. In the instant case, for example, petitioner notes that he could have alleged that the pillow was left on the stairs with the intention of harming him. This invitation to “artful” pleading, petitioner contends, would engender sticky (and needless) disputes over what is fairly pleaded. What’s more, requiring complainants to allege something more than negligence would raise serious questions about what “more” than negligence—intent, recklessness, or “gross negligence”—is required,^[3] and indeed about what these elusive terms mean. See Reply Brief for Petitioner 9 (“what terms like willful, wanton, reckless or gross negligence mean” has “left the finest scholars puzzled”). But even if accurate, petitioner’s observations do not carry the day. In the first place, many branches of the law abound in nice distinctions that may be troublesome but have been thought nonetheless necessary:

“I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized.” LeRoy Fibre Co. v. Chicago, M. & St. P. R. Co., 232 U.S. 340, 354 (1914) (Holmes, J., partially concurring).

More important, the difference between one end of the spectrum—negligence—and the other—intent—is abundantly clear. See O. HOLMES, THE COMMON LAW 3 (1923). In any event, we decline to trivialize the Due Process Clause in an effort to simplify constitutional litigation.

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Justice Stevens, concurring in the judgments.

* * * * *

[11]I would not reject these claims, as the Court does, by attempting to fashion a new definition of the term “deprivation” and excluding negligence from its scope. No serious question has been raised about the presence of “state action” in the allegations of negligence, and the interest in freedom from bodily harm surely qualifies as an interest in “liberty.” Thus, the only question is whether negligence by state actors can result in a deprivation. “Deprivation,” it seems to me, identifies, not the actor’s state of mind, but the victim’s infringement or loss. The harm to a prisoner is the same whether a pillow is left on a stair negligently, recklessly, or intentionally; so too, the harm resulting to a prisoner from an attack is the same whether his request for protection is ignored negligently, recklessly, or deliberately. In each instance, the prisoner is losing—being “deprived” of—an aspect of liberty as the result, in part, of a form of state action.

[12]Thus, I would characterize each loss as a “deprivation” of liberty. Because the cases raise only procedural due process claims, however, it is also necessary to examine the nature of petitioners’ challenges to the state procedures. To prevail, petitioners must demonstrate that the state procedures for redressing injuries of this kind are constitutionally inadequate. Petitioners must show that they contain a defect so serious that we can characterize the procedures as fundamentally unfair, a defect so basic that we are forced to conclude that the deprivation occurred without due process.

[13]Daniels’ claim is essentially the same as the claim we rejected in Parratt. The Court of Appeals for the Fourth Circuit determined that Daniels had a remedy for the claimed negligence under Virginia law. Although Daniels vigorously argues that sovereign immunity would have defeated his claim, the Fourth Circuit found to the contrary, and it is our settled practice to defer to the Courts of Appeals on questions of state law. It is true that Parratt involved an injury to “property” and that Daniels’ case involves an injury to “liberty,” but, in both cases, the plaintiff claimed nothing more than a “procedural due process” violation. In both cases, a predeprivation hearing was definitionally impossible. And, in both cases, the plaintiff had state remedies that permitted recovery if state negligence was established. Thus, a straightforward application of Parratt defeats Daniels’ claim.

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Daniels v. Williams – Audio and Transcript of Oral Argument

Notes on Daniels v. Williams

1. Does Daniels clarify whether Section 1983 imposes a culpability requirement beyond that set forth by the Constitution?
2. As Justice Rehnquist noted in Baker v. McCollan, 443 U.S. 137, 140 n.1 (1979), the state of mind of the defendant may be relevant on the issue of whether a constitutional violation has occurred in the first place, quite apart from the issue of whether § 1983 contains some qualification of that nature before a defendant may be held to respond in damages….
   1. Often the question of whether particular government action violates the Constitution does not depend on the intent of the defendant or the reasonableness of his conduct, but instead turns on whether the official has contravened a legal standard established by judicial decisions. For example, while the Fourth Amendment prohibits “unreasonable searches and seizures,” the factual question of the reasonableness of the officer’s conduct under the circumstances is generally inapposite to whether she has violated the amendment. Anderson v. Creighton, 483 U.S. 635, 643 (1987). Instead, the courts measure the officer’s actions against the legal standard of probable cause and the requirement that a warrant be obtained. See Dunaway v. New York, 442 U.S. 200, 213-14 (1979) (“[R]espondent urges us to adopt a multifactor balancing test of ‘reasonable police conduct under the circumstances’ to cover all seizures that do not amount to technical arrests… . [T]he requisite ‘balancing’ has been performed in centuries of precedent and is embodied in the principle that seizures are ‘reasonable’ only if supported by probable cause.”).
   2. While the intent or reasonableness of the official’s conduct is at times immaterial to the constitutional standard, certain rights guaranteed by the Constitution are violated only where the officer acted recklessly or with an intent to deprive plaintiff of the constitutional right. See Mobile v. Bolden, 446 U.S. 55, 66 (1980) (“the basic principle [is] that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment.”); Weatherford v. Bursey, 429 U.S. 545 (1977) (presence of undercover agent at meetings between criminal defendant and his attorney did not deprive accused of right to effective assistance of counsel absent intent to intrude into attorney-client relationship to learn defense plan); Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977) (teacher must prove that First Amendment activities were a “motivating factor” in decision not to rehire him to establish constitutional violation); Estelle v. Gamble, 429 U.S. 97, 106 (1977) (proof of negligence in administering medical care to a prisoner is insufficient to state a claim for violation of the Eighth Amendment. The prisoner must demonstrate “deliberate indifference to serious medical needs.”)
3. Does Daniels hold that negligent conduct may never constitute a deprivation of life, liberty or property?
   1. While both Parratt and Daniels dealt with negligent conduct that was inadvertent, negligence may also consist of intentional acts that are unreasonable because of the risk of harm posed to others. In such instances, the difference between negligence and recklessness is that
      

      the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

      Restatement (Second) of Torts § 500, Comment g. Should the Fourteenth Amendment be interpreted to proscribe intentional, as opposed to inadvertent, actions that are negligent but not reckless?

   2. In a companion case to Daniels, the Court held that a prisoner who claimed that prison officials negligently failed to protect him from attack from another inmate did not establish a “deprivation” within the meaning of the Fourteenth Amendment. Davidson v. Cannon, 474 U.S. 344 (1986). “As we held in Daniels, the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by prison officials.” Davidson, 474 U.S. at 348. Justice Blackmun, joined by Justice Marshall, dissented from the majority’s holding that negligence could never constitute a “deprivation” of liberty:
      

      I agree that mere negligent activity ordinarily will not amount to an abuse of state power. Where the Court today errs, in my view, is in elevating this sensible rule of thumb to the status of inflexible constitutional dogma. The Court declares that negligent activity can never implicate the concerns of the Due Process Clause. I see no justification for this rigid view. In some cases, by any reasonable standard, governmental negligence is an abuse of power. This is one of those cases.

      It seems to me that when a State assumes sole responsibility for one’s physical security and then ignores his call for help, the State cannot claim that it did not know a subsequent injury was likely to occur. Under such circumstances, the State should not automatically be excused from responsibility. In the context of prisons, this means that once the State has taken away an inmate’s means of protecting himself from attack by other inmates, a prison official’s negligence in providing protection can amount to a deprivation of the inmate’s liberty, at least absent extenuating circumstances. Such conduct by state officials seems to me to be the “arbitrary action” against which the Due Process Clause protects. The official’s actions in such cases thus are not remote from the purpose of the Due Process Clause and § 1983.

      Negligence in such a case implicates the “‘[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” Monroe v. Pape, 365 U.S. 167, 184 (1961), quoting United States v. Classic, 313 U.S. 299, 326 (1941). The deliberate decision not to protect Davidson from a known threat was directly related to the often violent life of prisoners. And protecting inmates from attack is central to one of the State’s primary missions in running a prison—the maintenance of internal security. See Hudson v. Palmer, 468 U.S. 517, 524 (1986).

      The Fourteenth Amendment is not trivialized … by recognizing that in some situations negligence can lead to a deprivation of liberty. On the contrary, excusing the State’s failure to provide reasonable protection to inmates against prison violence demeans both the Fourteenth Amendment and individual dignity.

      Id. at 353-56.

   3. The provisions of the Bill of Rights are made applicable to the states only by virtue of selective incorporation through the Due Process Clause of the Fourteenth Amendment. Does Daniels consequently hold that a state or local official cannot be deemed to have violated any provision of the Bill of Rights by negligent conduct?
   4. Does the Daniels Court’s interpretation of the term “deprivation” in the Fourteenth Amendment apply equally to the term in the text of 42 U.S.C. § 1983?
4. The Daniels Court expressly declined to consider whether recklessness or “gross negligence” may constitute a “deprivation” within the meaning of the Due Process Clause of the Fourteenth Amendment. 474 U.S. 327, 334 n.3 (1986).
   1. Although some courts have held that “gross negligence,” as opposed to “mere negligence” amounts to a Fourteenth Amendment violation, see Dell Fargo v. City of San Juan Bautista, 857 F.2d 638, 640-41 (9th Cir. 1988) and cases cited at 640 n.3, at least one court has found that allegations of gross negligence do not state a Fourteenth Amendment violation. Myers v. Morris, 810 F.2d 1437, 1468 (8th Cir. 1987). In Metzger v. Osbeck, 841 F.2d 518, 523-24 (3rd Cir. 1988), Judge Weis vigorously dissented from the majority’s determination that the Due Process Clause proscribes grossly negligent conduct:
      

      I also must disagree with the majority’s footnote that this case can be sent to the jury on a theory of “gross negligence.” In cases of this nature, the use of “gross” as opposed to “simple” negligence will not serve to overcome the distinction between an ordinary tort and a constitutional violation. As Chief Judge Gibbons pointed out in his dissent in Davidson v. O’Lone, 752 F.2d 817 (3d Cir. 1984), aff’d sub. nom. Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed.2d 677 (1986): “The prevailing view is that there are no ‘degrees’ of care or negligence, as a matter of law; there are only different amounts of care as a matter of fact; and ‘gross negligence’ is merely the same thing as ordinary negligence, ‘with the addition,’ as Baron Rolfe once put it, ‘of a vituperative epithet.’” See id. at 853 (quoting W. PROSSER, HANDBOOK OF THE LAW OF TORTS 182 (4th ed. 1971)).

      Cf. Farmer v. Brennan, 511 U.S. 825, 836, n.4 (1994) (“Between the poles [of negligence and intent] lies ‘gross negligence’ too, but the term is a ‘nebulous’ one, in practice meaning little different from recklessness as generally understood in civil law. ”)

   2. In Davidson v. Cannon, 474 U.S. 344, 358 (1986), Justice Blackmun, in a dissenting opinion joined by Justice Marshall, opined that reckless conduct would rise to a Due Process violation:
      

      Reckless or deliberate indifference is all that a prisoner need prove to show that denial of essential medical care violated the Eighth Amendment’s ban on cruel and unusual punishment. The Due Process Clause provides broader protection than does the Eighth Amendment, so a violation of the Due Process Clause certainly should not require a more culpable mental state. [citations omitted]

      Justice Brennan, in a separate dissenting opinion, agreed that a deprivation is established by proof of recklessness or deliberate indifference. Id. at 349.

   3. In Farmer v. Brennan, 511 U.S. 825 (1994), the Court interpreted the standard of culpability of “deliberate indifference” for purposes of establishing a violation of the Eighth Amendment arising out of prison officials’ alleged failure to protect a transsexual inmate from a sexual assault by another inmate. The Court first approved the court of appeals’ decisions equating deliberate indifference with recklessness, a level of culpability lying between negligence and purpose or knowledge. Id. at 836. It then turned to the issue of whether plaintiff could prevail by proving recklessness as defined by the civil law—a act or failure to act “in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Id. The Court held that to establish a violation of the Eighth Amendment for denying an inmate humane conditions of confinement, a plaintiff must prove recklessness as that term is used in the criminal law—disregard of a risk of harm of which the person is aware.
      

      [T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel and unusual “punishments.” An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis. See PROSSER AND KEETON §§ 2, 34, pp. 6, 213-214; see also Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680; United States v. Muniz, 374 U.S. 150, 83 S. Ct. 1850, 10 L. Ed.2d 805 (1963). But an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.

      Id. at 837-38.

      The Court made clear, however, that its decision was based upon the text and precedents under the Eighth Amendment and not necessarily a universally applicable construction of the term “deliberate indifference.”

      Our decision that Eighth Amendment liability requires consciousness of a risk is thus based on the Constitution and our cases, not merely on a parsing of the phrase “deliberate indifference.” And we do not reject petitioner’s arguments for a thoroughly objective approach to deliberate indifference without recognizing that on the crucial point (whether a prison official must know of a risk, or whether it suffices that he should know) the term does not speak with certainty. Use of “deliberate,” for example, arguably requires nothing more than an act (or omission) of indifference to a serious risk that is voluntary, not accidental. Cf. Estelle, 429 U.S. at 105, 97 S. Ct. at 291-292 (distinguishing “deliberate indifference” from “accident” or “inadverten[ce]”). And even if “deliberate” is better read as implying knowledge of a risk, the concept of constructive knowledge is familiar enough that the term “deliberate indifference” would not, of its own force, preclude a scheme that conclusively presumed awareness from a risk’s obviousness.

      Id. at 840.

   4. In Collins v. City of Harker Heights, 503 U.S. 115 (1992), the Supreme Court rejected plaintiff’s effort to impose liability under Section 1983 for the city’s failure to train its employees about the dangers of working in sewer lines and manholes. Construing the plaintiff’s complaint as resting upon the substantive aspect of the Due Process Clause, the Court reasoned:
      

      [T]he city’s alleged failure to train its employees, or to warn them about known risks of harm, was [not] an omission that can be properly characterized as arbitrary or conscience-shocking in a constitutional sense. Petitioner’s claim is analogous to a fairly typical state tort claim: The city breached its duty of care to her husband by failing to provide a safe working environment…. [T]he Due Process Clause “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.”

      503 U.S. at 128-29.

      In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Court considered the standard of culpability governing a claimed violation of substantive due process arising out of a high speed automobile chase that resulted in the death of plaintiffs’ sixteen-year-old son. Reversing the Ninth Circuit’s determination that deliberate indifference to or reckless disregard for life was the appropriate standard of fault, the Supreme Court held that only governmental action that shocks the conscience offends the substantive dimension of the Due Process Clause. The Court then elaborated on the meaning of the shocks the conscience standard:

      It should not be surprising that the constitutional concept of conscience-shocking duplicates no traditional category of common- law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law’s spectrum of culpability.  We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process… . It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. [citation omitted]

      Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but “less than intentional conduct, such as recklessness or ‘gross negligence,’” … is a matter for closer calls. To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 77 L. Ed.2d 605, 103 S. Ct. 2979 (1983), that “the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner.” Id., at 244 (citing Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 545, 60 L. Ed.2d 447, 99 S. Ct. 1861 (1979)). Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, see Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed.2d 251, 97 S. Ct. 285 (1976), it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial….

      Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking….

      Thus, attention to the markedly different circumstances of normal pretrial custody and high-speed law enforcement chases shows why the deliberate indifference that shocks in the one case is less egregious in the other (even assuming that it makes sense to speak of indifference as deliberate in the case of sudden pursuit). As the very term “deliberate indifference” implies, the standard is sensibly employed only when actual deliberation is practical, see Whitley v. Albers, 475 U.S. at 320, n.11 and in the custodial situation of a prison, forethought about an inmate’s welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare….

      Nor does any substantial countervailing interest excuse the State from making provision for the decent care and protection of those it locks up; “the State’s responsibility to attend to the medical needs of prisoners [or detainees] does not ordinarily clash with other equally important governmental responsibilities.” Whitley v. Albers, supra, at 320.

      But just as the description of the custodial prison situation shows how deliberate indifference can rise to a constitutionally shocking level, so too does it suggest why indifference may well not be enough for liability in the different circumstances of a case like this one. We have, indeed, found that deliberate indifference does not suffice for constitutional liability (albeit under the Eighth Amendment) even in prison circumstances when a prisoner’s claim arises not from normal custody but from response to a violent disturbance… . In those circumstances, liability should turn on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” 475 U.S. at 320-321 (internal quotation marks omitted). The analogy to sudden police chases (under the Due Process Clause) would be hard to avoid.

      Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other…. A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers, or bystanders.

      To recognize a substantive due process violation in these circumstances when only mid-level fault has been shown would be to forget that liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations…. But when unforeseen circumstances demand an officer’s instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates “the large concerns of the governors and the governed.”  Daniels v. Williams, 474 U.S. at 332. Just as a purpose to cause harm is needed for Eighth Amendment liability in a riot case, so it ought to be needed for Due Process liability in a pursuit case. Accordingly, we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.

      Lewis, 523 U.S. at 848-54.

5. A culpability requirement in Section 1983 actions also may be introduced by the qualified immunity defense, which allows a defendant to avoid liability when his actions, albeit unconstitutional, are not blameworthy. Consequently, proper analysis of the standard of fault in suits under Section 1983 must consider a) any culpability that plaintiff must prove to establish a constitutional violation; b) any additional culpability requirement imposed by the statute as part of the plaintiff’s prima facie case; and c) the elements of the qualified immunity defense. The interrelationship of the three sources of culpability will be explored in Chapter III, infra.
6. Having found no constitutional violation in Daniels and Davidson, the Court had no occasion to determine whether the state post-deprivation remedy was rendered inadequate by the availability of a sovereign immunity defense. Justices Blackmun and Stevens did address the issue and arrived at contrary conclusions. Justice Blackmun, joined by Justice Marshall in dissent in Davidson, opined that the state tort action was not an adequate post-deprivation remedy because the prisoner’s complaint would have been dismissed before being heard on the merits due to the sovereign immunity defense.
   

   Conduct that is wrongful under § 1983 surely cannot be immunized by state law. A State can define defenses, including immunities, to state-law causes of action, as long as the state rule does not conflict with federal law…. But permitting a state immunity defense to control in a § 1983 action “‘would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced.’”…

   Davidson has been denied “‘an opportunity … granted at a meaningful time and in a meaningful manner’ … ‘for [a] hearing appropriate to the nature of the case.’”…  Lacking a meaningful postdeprivation remedy in state court, Davidson was deprived of his liberty without due process of law.

   Davidson v. Cannon, 474 U.S. 344, 359-60 (1986) (Blackmun, J. dissenting).

   Justice Stevens, on the other hand, found that the state tort remedy afforded sufficient due process notwithstanding the immunity defense.

   Those aspects of a State’s tort regime that defeat recovery are not constitutionally invalid, so long as there is no fundamental unfairness in their operation. Thus, defenses such as contributory negligence or statutes of limitations may defeat recovery in particular cases without raising any question about the constitutionality of a State’s procedures for disposing of tort litigation. Similarly, in my judgment, the mere fact that a State elects to provide some of its agents with a sovereign immunity defense in certain cases does not justify the conclusion that its remedial system is constitutionally inadequate. There is no reason to believe that the Due Process Clause of the Fourteenth Amendment and the legislation enacted pursuant to § 5 of that Amendment should be construed to suggest that the doctrine of sovereign immunity renders a state procedure fundamentally unfair. Davidson’s challenge has been only to the fact of sovereign immunity; he has not challenged the difference in treatment of a prisoner assaulted by a prisoner and a nonprisoner assaulted by a prisoner, and I express no comment on the fairness of that differentiation.

   474 U.S. at 342-43 (Stevens, J. concurring in the judgment).