*1 Irby, Plaintiff-Appellant-Petitioner, Leon
v. Larry Mary Phillip Julson, Klemz, G. Lt. J. Macht, Gary Whitley, David Warner and Defendants- Respondents.
Supreme Court 26, 1994. argument April No. 90-2662. Oral June Decided 17, 1994. 9.) (Also reported in 522 N.W.2d *4 plaintiff-appellant-petitioner there were For the argument by Askins, Martha K. assis- briefs and oral public tant state defender. defendants-respondents the cause was
For the Kloppenburg, attorney argued by assistant Joanne F. Doyle, general, the brief was James E. with whom on attorney general. Irby petitioner, Leon J. WILCOX, P. J.
JON appeals (Irby), of the court of review of a decision seeks affirming U.S.C., of his the trial court's dismissal 1983) (sec. Irby maintains that claims.1 sec. 1983 Department of Correc- were defendants, all of whom (DOC) rights process employees, his due violated tions reducing segregation by placing his earned him in according procedu- good-time him the credits without by protections the Wisconsin mandated ral appeals of held Code. The court Administrative deprived of due because had not been U.S.C., sec. 1983 states that: 1 42 ordinance, statute, regula- who, any Every person under color Territory tion, custom, usage any or the District of State or or subjected, any Columbia, subjects, of the citizen or causes be jurisdiction person to the thereof States or other within United by any rights, privileges, secured deprivation or immunities the. injured laws, party in an liable to the shall be Constitution proceeding law, equity, proper for redress. or other at suit in action *5 defendants' acts were random and unauthorized and Irby adequate postdepriva- because the state afforded tion remedies. We affirm. Irby's
The issue before this court is whether
com-
plaint
upon
granted.
states a claim
which relief can be
determining
complaint
In
whether a
should be dis-
pleaded
missed,
"the facts
and all
reasonable
pleadings
inferences from the
are taken as true." State
TV,
v.
(1988).
292,
American
146 Wis. 2d
300,
In of 1988, while an inmate at the Wis- (WRC), Irby charged consin Resource Center was with including attempted battery, several rule violations making showing disrespect threats, and employees. Code, Wis. Admin. secs. 303.12, DOC respectively. disciplinary 303.16, and 303.25 The com- charges, mittee at WRC met to consider these on September Irby 29, 1988, determined that committed alleged days violations.2 was sentenced to 8 adjustment segregation days program seg- and 360 regation. good-time He also suffered the loss of earned credits.
Irby sought disciplinary certiorari review of proceedings County in the Dane Court, Circuit assert- ing disciplinary that the committee failed to observe Irby's alleged At the time of violations, rule discipli nary committee at Julson, WRC consisted of defendants Klemz and Warner. Defendant Superintendent Macht was the at Whitley WRC. Defendant was a social worker at WRC and Irby's appointed during advocate disciplinary proceedings. procedures mandated the Wisconsin Adminis- agreed trative Code. circuit court and ordered that disciplinary hearing place. a second take At this rehearing, disciplinary again committee once found Irby guilty. petitioning
Rather than the circuit court for certio- hearing, Irby disciplinary rari review of the second *6 complaint initiated this sec. 1983 His action. accuses depriving constitutionally- the defendants of him of protected liberty process interests without due of law. requesting money damages, costs, He is and the expungement of his record. granted 1990,
In of October circuit court defendants' motion to dismiss for failure to state a appeals holding Irby affirmed, claim. court of required was to exhaust his administrative remedies prior bringing to a sec. 1983 action. Irby's petition abey-
This court held
in
review
pending
Vaade,
ance
our decision in Casteel v.
167 Wis.
(1992). Casteel,
2d
In
N.W.2d
we concluded
plaintiffs
need not exhaust their administrative
initiating
prior
in
remedies
a sec. 1983 action
Casteel,
the court
court. Id. at 17. Based on
we vacated
appeals'
Irby's complaint
dismissal of
and remanded
proceedings.
the matter back to that court for further
appeals again
remand,
On
the court of
affirmed the
Irby's
complaint. Relying upon
dismissal of
sec. 1983
analysis
Supreme
in
the United States
Court's
(1990),
Burch,
Zinermon v.
As
liberty
deprived
protected
that he was
contention
Accordingly,
process
our
of law.
interests without due
Irby
in
has
fact been
first task is to determine whether
liberty
protected by
deprived
Due Pro-
interest
of a
argues
earned
that retention of his
Clause.
cess
right
good-time
his
to remain
credits, as well as
being placed
population
general prison
than
rather
liberty
protected
segregation,
interests. We
both
are
agree.
(1974),
McDonnell,
In v.Wolff Supreme the Due Process Clause Court concluded that require provide not states to in and of itself does good-time credits. Id. at 557. Further- inmates with good-time oblige merely creating not more, credits does provide inmates due before such cred- a state to away. However, taken when states create its can be right good-time, further condition its loss and then major prisoners acquire only upon proof misconduct, respect protected Thus, to the interest. with *7 con- statutes at issue in Court Wolff, Nebraska cluded: only good-time prisoners in can lose
Since Nebraska they guilty misconduct, credits if determination occurred becomes are of serious
of whether such behavior has critical, and the minimum requirements procedural processappropriate due for the circumstancesmust be observed.
Id. at 558. applicable
The state concedes that Wisconsin liberty regulations protected interest in the create a good of earned time. The Adminis- retention Wisconsin good Code, trative sec. DOC 303.68 defines the loss of "major penalty," imposed only time as a which can be guilty disciplinary when the inmate has been found of a addition, In rule. DOC 303.84 establishes the maxi- by good mum amount which an inmate's time can be type reasoning reduced for each of violation. Under the expressed Irby protected liberty in Wolff, has a interest good-time in the retention of his earned credits. disputed
The more
issue is whether he also has a
liberty
remaining
general prison pop-
interest in
in the
being placed
segregation.
ulation rather than
in
The
citing
state maintains that
no
interest,
has
such
(1976).
Fano,
Meacham v.
[G]iven a valid the criminal defendant constitutionally deprived liberty has been of his may the extent the State confine him and sub- ject prison system long him to the rules of its so as the conditions confinement do not otherwise vio- late the Constitution. result, As a
Id. at 224. Court concluded that the protect Due Process Clause and of itself does not an being prison-to-prison inmate's interest free from transfers, even if "life in one is much more disa- greeable than in another .. .."Id. at 225.
The state have us take from Meacham the would proposition given prisoners conviction, a valid automatically forfeit their interests with respect of their incarceration, conditions *8 institution, to a less desirable that be transfer
whether segregation. Irby's placement in case, or, as in interpretation, however, fails The state's acknowledge Meacham, Court noted that in that Massachusetts in Wolff, Nebraska statutes unlike the right upon prisoners to remain in confer did not law initially assigned: they prison were to which Mas- advised, transfers between are Insofar as we upon the not conditioned prisons are sachusetts contrary, On the specified events. occurrence circumstances is vested variety of in a wide transfer invoking the predicate in officials. con- Amendment as the Fourteenth protection of in totally is nonexistent applied strued Wolff added.) this case. (Emphasis Meacham, at 226-27. 427 U.S. may uncertainty
Any in this have existed which Helms, 459 U.S. in Hewitt v. resolved area was (1983). whether inmates in Hewitt was The issue liberty Pennsylvania prisons in not interest had a segregation. being placed In conclud- in administrative protect ing not Clause itself does the Due Process "one reiterated its view that interest, the Court an such designed automatically apply procedural rules cannot society very open to the in an ... citizens for free by disciplinary proceed- presented different situation quoting ing prison." 418 U.S. Wolff, Id. at in a state that administra- addition, the Court believed at 560. In type segregation of confinement was the tive anticipate" during "reasonably their should inmates at 468. incarceration. Id. that Penn-
Nevertheless, the Court concluded regulations gave sylvania's inmates a statutes remaining general protected in the interest in *9 prison population. regulations required First, the process procedures certain due "shall," "will," and complied "must," be with before an inmate could be placed segregation. in Id. at 471-72. Second, adminis- segregation only imposed trative specified could be if predicates" example "substantive for existed, "the need control," for or "the threat of a serious disturbance." Id. at 472. The Court concluded:
[0]n balance we are persuaded repeated, the use explicitly mandatory language in connection with requiring specific predicates substantive demands a conclusion that the State has created a protected liberty interest. Kentucky Dep't
Id.
also,
at 472. See
Corrections v.
(1989) ("a
Thompson,
conclude that adjustment interest in not in program segregation and/or is constitu- tionally protected. regulations The administrative governing prison disciplinary classify matters both adjustment segregation program segregation and as "major penalties" only imposed which can be for viola- "major chapter tion of a offense."3In addition, that also procedures complied lists which must be with before guilty major inmates can be found of a offense. For prisoner given prior instance, must be notice of the disciplinary hearing,4 prisoner has the limited right prisoner pro- to call witnesses,5 and the must be Code, Wisconsin Admin. secs. DOC 303.69 and 303.70. 303.76(1) 303.81(9). Code, Wis. Admin. secs. DOC 303.81(1)-(8). DOC copy disciplinary committee's a written
vided including for its decision.7 Because decision,6 basis only segregation adjustment program can be "major imposed violations," and because adminis- mandatory language regulations utilize trative prisoners, must be accorded which describe Irby liberty given interest has believe Wisconsin we population, general prison remaining and free adjustment program segregation.8 or from *10 Irby deprived protected of a
The that has been fact liberty not, however, that his con- does mean interest rights The Due Process have been violated. stitutional persons prevent depriving from Clause does not states liberty property. Rather, or Clause life, of their protects against deprivations only which occur those Taylor, process 451 Parratt v. due law." "without (1981). must therefore determine 527, 537 We U.S. in this due was accorded whether instance. 6 303.76(6). DOC 7 303.76(5), p. 114. Appendix Note DOC See
8 placement regulations pertaining respects, In these segregation quite are unlike those adjustment program in McCaughtry, 571, v. 500 N.W.2d Casteel in 176 Wis. 2d at issue Casteel, (1993). question inmates had a was whether 277 In placed temporary liberty being in not in interest protected require that lockup. pertinent regulations The DOC did not being placed "major of a offense" before guilty inmates be found 303.11(4) Rather, placement temporary lockup. DOC allowed likely if it than not" temporary lockup officials believed "more existed. Id. at 583-84. We necessary preconditions regulations protected did not create a determined those they limitations on place because did not "substantive interest Id. at official discretion." 584.
Generally, process requires due that notice and an provided opportunity to be heard be before a constitu- deprivation purpose tional requirement occurs.9 The of this
obviously prevent wrongful depriva- is to they tions before occur. Supreme recognized, however, Court has deprivation results from the "random and
when employees, providing unauthorized" meaningful predeprivation process acts of state impracticable.
is Palmer, Parratt, 543-44; 451 U.S. at Hudson v. (1984); Burch, 113, Zinermon v. 494 U.S. U.S. (1990). predict 128-29 Because the state cannot when pro- occur, will the Court has held that due such acts provided the state makes cess will still be satisfied adequate postdeprivation Parratt, remedies. available U.S. at 544. Supreme Parratt, held that it Thus, in Court conceive" how the state could have was "difficult to employees meaningful hearing provided before its hobby misplaced negligently mail-order an inmate's the Court concluded result, Id. at 541. As a materials. remedy provided by the state satisfied due that the tort *11 adequate process an it offered the inmate because remedy. postdeprivation Id. at 544. destroyed prison employees Hudson, an
In
during
personal property
the course of a
inmate's
Hudson,
U.S. at 520.
search.
"shakedown"
Although
deprivation resulted from the
the
Hudson
negligent
employees'
actions,
intentional rather than
discussing
Supreme Court cases
For a list of United States
provide some
process requirement
that states
general
due
deprivation
opportunity
to be heard
form of notice
before
(1990).
Burch,
113, 127-28
Zinermon v.
occurs,
see
494 U.S.
underlying
rationale
believed
the Court
applied just the same:
Parratt
himself is able to
employee
an individual
Whether
simply
consequence.
of no
deprivation is
foresee a
is
solely whether
the state
controlling inquiry is
The
process.
predeprivation
position
provide
in a
to
Finding
the state can no
Hudson,
Given these the Court held that Florida’s adequate predeprivation proce- to failure mandate effectively delegated dures to the defendants broad patients "voluntary" discretion to admit on a basis having competency. without to confirm their As a incompetent person result, the fact that an was "volun- tarily" unpredictable, admitted was neither predeprivation procedures, unamenable to nor unau- acting thorized. Id. at 136-38. The defendants were not randomly authority. contrary, or without On the question delegated statutes ability to the defendants the precisely they did, i.e., do what admit the plaintiff confirming competency. without first his regulations gov- believes that the Wisconsin erning disciplinary hearings comparable are to those in Zinermon, and that conduct in defendants' this disagree. was not case random and unauthorized. We delegation apparent Unlike the broad of discretion regulations severely Zinermon, the DOC in this case discretionary authority limit the officials. regulations length explicitly great spell Those and at procedures out the inmates must be afforded with respect hearings. disciplinary instance, For inmates given hearing's time,10 must be notice nature charges against penalties they them,11 of the and the right In addition, face.12 inmates have a limited to call right witnesses,13 to an advocate's assistance in 303.81(9). Code, Wis. Admin. sec DOC 303.76(1). DOC 12d. 303.81(l)-(8). DOC *13 including presenting the preparing defense, a and testimony,14 right gathering to the of and evidence assigned if the advo- a advocate selected have different of conflict a and demonstrated cate has known by guilty preponder- right a the to be found interest,15 right evidence,16 the to know the basis of ance the right appeal decision,17 the the to committee's and the superintendent.18 the to initial decision alleges Irby failed to observe that the defendants requirements. instance, For he claims number of these disciplinary prior notice of he did not receive provide hearing, him with that the committee did not decision, he not allowed for its that was the reasons desired, and that defendant the witnesses he call Whitley's despite Whitley imposed as his advocate was of interests. conflicts preceding paragraph the defend indicates,
As the Irby any authority deprive of did not have ants Nagle, procedural rights. v. F. See, Duenas 765 these 1991) (W.D. ("In [to Supp. contrast 1393, 1399 Wis. Zinermon] regulations com Wisconsin established limiting strictly disciplinary procedures prehensive discretion.") McCaughtry, and Scott v. staff 1992) ("The (E.D. Supp. Wis. Wisconsin F. system, Burch, in Zinermon v. does unlike the situation it to the defendants that not vest such broad discretion type complained predictable that errors would be occur."). agree by plaintiff result, As a we with would 303.78(1)(b) 303.78(2). 14DOC 303.78(1)(c). 15DOC 16 303.76(6).
DOC 303.76(6) 303.76(5), p. Appendix to DOC 17DOC Note 114. 303.76(7). DOC appeals'
the court of conclusion that the defendants' acts in this case were random and unauthorized.19 inquiry,
Our final then, is to determine whether postdeprivation by remedies offered the state are adequate. adequate, Irby If those remedies are deemed will have received the he is due. seriously dispute adequacy does not of the postdeprivation regards
state's
remedies in
to his
good
earned
time. On certiorari review, the circuit
any
good
court can order the restoration of
lost
time.
expunge
disciplinary
court can also
the inmate's
wrongly
good
addition,
record. In
should the
forfeited
length remaining
prisoner's
time exceed the
on the
sen-
*14
prisoner
pursue
tence, the
can
a tort action for false
imprisonment.
Anders,
Lemke v.
inmates for of earned good time.
We also believe that the state offers an ade- quate postdeprivation remedy allegedly for his wrongful placement segregation. reaching in In that guided by postdepriva- conclusion, we are the fact that adequate they tion remedies will be deemed unless can "readily inadequáte point be characterized as to the nonexistent_" [they meaningless are] or Scott v. (E.D. McCaughtry, Supp. 1992), 810 F. 1015, 1019 Wis. quoting, Felder, Easter House v. 910 F.2d 1387, 1406 also, Felder, (7th Easter House v. 1387, 1404 See 910 F.2d 1990), holding Cir. that sec. 1983: employed remedy deprivations should not be which occur at the employee acting
hands
a state
who is
in direct contravention of
policies
procedures
the state's established
and
which have been
designed
guarantee
very protections
employee
the
which the
now
ignore. (Emphasis
original.)
has chosen to
in
(7th
1990).
adequacy of
also note that
the
Cir.
We
by
postdeprivation
the
remedies must be measured
deprivation.
alleged
New
the
unauthorized
nature of
Village Burnham,
Homes, Inc. v.
Burnham Prairie
1990).
(7th
1474, 1480
Cir.
910 F.2d
Supreme
Hewitt,
discussed the rela-
In
Court
liberty
tively
inmates have in
interest
limited
segregation.
remaining
case,
In that
free from
in
interests at stake
Court characterized
significant
good-time
parole
more
decisions as far
being placed
prisoner's "minor" interest in not
than
segregation. Hewitt,
Given segregation, conclude we ment postdeprivation by offered the state are ade-
remedies
by
quate.
believe,
what
evinced,
is
we
This
best
discipli-
Following
transpired
initial
case.
this
nary hearing,
Irby petitioned
the circuit court
alleging
various due
viola-
review,
certiorari
agreed
Irby's,
court
with
contentions
tions. The circuit
imposition of "administrative"
dealt with the
20Hewitt
*15
Although Irby's segrega
"disciplinary" segregation.
rather than
nature,
is
do not think this distinction
disciplinary
is
in
we
tion
Hewitt,
Pennsylvania statutes established
significant.
In
the
"discipli
types
segregation,
basic
of
"administrative"
two
purposes of its
Nevertheless,
court assumed for the
nary."
types
were
the conditions in the two
of confinement
opinion that
Hewitt,
substantially
distress, custody placement family as federal friends, and in Id. at 1396. INS detainee. an determining defendants' acts that the After first per Parratt, at Id. and unauthorized" "random were to that the Inmate court went on hold 1398, the district pro- Complaint System and certiorari review Review adequate postdeprivation prisoner with vided the remedies: extends to whether scope of review on certiorari guar- in violated question action administrative the federal and found in both
antees
due
Nehls,
Krison v.
F.2d 344
state constitutions.
1985).
(7th
encompasses
review also
Cir.
Certiorari
adjustment
committee
that
assertions
governing the conduct
its own rules
failed
follow
Meeks,
rel
hearings. State v. ex
Wis. 2d at
Duenas,
Given these
765 F.
at 1400.
expungement
inmate's disci
of the
included the
which
plinary
the court did not believe
record,
money damages
inability
rendered certiorari
to receive
injured
remedy.
inadequate
an
"The fact that
an
review
'might
party
. . the full amount
not be able
recover .
might
.
in a
1983 action is not.
.
he
receive
sec.
which
remedy.'"
adequacy of
of the
determinative
quoting
House,
Id.,
We with the court's deprivation by placement occasioned the limited Given Sys- Complaint segregation, Inmate we find analysis virtually presented to that For a identical 1015 (E.D. Dueñas, McCaughtry, Scott v. Supp. 810 F. Wis. see 1992). coupled provide
tem, review, with certiorari inmates *17 Irby adequate post-deprivation such as remedies. guarantee procedural These remedies type Irby alleges errors ofthe quickly fairly
will be addressed, appropriate, disciplinary and that when the commit- tee's decision will be overturned and the inmate's expunged. record We do not believe these remedies are "meaningless" simply they because do not afford opportunity money damages. inmates an to receive conclusion, In we hold that the defendants were acting in a random and unauthorized manner when they process by failed accord the mandated the Wisconsin Administrative Code. Because the state has provided adequate postdeprivation remedies, we con- progeny, Irby clude that under Parratt and its has not deprived process. been due
By appeals the of the Court.—The decision court of affirmed. is (dissenting). ABRAHAMSON,
SHIRLEY S. J. I agree majority opinion with the insofar as it holds that petitioner constitutionally protected liberty has a remaining general prison population, interest in in the good-time I as well as retention of his earned credits. majority opinion from the I dissent because conclude petitioner's deprived that the claim that he was lib- erty process cognizable due of law is under 42 without U.S.C. sec. 1983. majority explains, depriva- opinion
As the not all liberty tions of violate Fourteenth Amendment federal Constitution. A claim under sec. 1983 allegation deprived requires an that state officials plaintiff property process life, or without due of law. . procedural appears rather to involve
This case process. due To determine whether a than substantive plaintiff alleges procedural violation, a due analytical two-part set forth use framework courts (1981). Taylor, First, such a in Parratt v. U.S. alleged if been and sec. 1983 is available violation has challenged is conduct not the court determines that Parratt, 451 U.S. at unauthorized," "random and pro- pursuant to an or is undertaken established conduct Second, cedure. even if the is considered pur- engaged not "random and is and unauthorized" challenged procedure, the conduct to established suant gives if rise to a sec. 1983 claim state law nevertheless adequate remedy. provide post-deprivation not an does very decipher difficult decision to Parratt has been *18 apply.1 and challenged opinion majority holds that the at "random unautho-
conduct in the case bar is and certiorari review of the rized" and that common law disciplinary an ade- board's decision constitutes petitioner's wrongful allegedly quate remedy for the segregation. disagree disciplinary placement I bn in both counts.
j.
impression
may
by
Contrary
that
be created
to the
approach
step
majority's
first
cut-and-dried
to the
the
analysis,
squarely
this case raises
the
in
Parratt
problem
Burch,
left in
of Zinermon v.
central
the wake
(1990).
pre-
state has
that on their face constitu- 1 Taylor: Depri See v. Unauthorized Zensky, Parratt David Adequate Remedy, 16 N.Y.U. vations and the Content An Rev. (1987-88). 161, 163 Change & Soc. L.
852 classify allegations muster, tional how are courts to responsible implementing the state officials procedures have failed to do so? Perhaps, majority suggests (Majority opin- as the 845-846), challenged at ion conduct is "random and by allegations unauthorized" definition because the procedures. indicate that officials violated established hand, On the other for other and commentators, courts argue it makes little sense to the constitution requires pre-deprivation proce- the establishment of require dures but does not state officials to them. follow viewpoints support Both of these find in Zinermon interpreted in and the cases that have it. Parratt and apprehension making Zinermon evince the Court's the Fourteenth Amendment a "font of tort law"2 and disagreements the Justices' in sec. 1983 actions about federalism, such concerns as overburdening burdens, federal court trivializing officials, constitutional rights.3 Judge correctly
As
Easterbrook
in
observes
his
Felder,
in
1387,
concurrence
Easter House v.
910 F.2d
(7th
1990),
(1991),
denied,
Cir.
cert.
The Seventh en divided over question Felder, this Easter House v. F.2d *19 (7th 1990) (Easterbrook, concurring; 1408 Cir. J. Cudahy, Cummings dissenting). Posner, and JJ. Fed- 2Parratt, (Powell, 451 U.S. at J. concurring). 549-50
3 Rights Civil and Liti Nahmod, Liberties See 1 Sheldon H. (3d 1991). gation 180-181 ed.
853
opposite
reached
in Wisconsin have
eral district courts
brought by prison
about sec. 1983 claims
conclusions
proceedings.
disciplinary
challenging
Duenas
See
v.
ers
(W.D.
1991)
Nagle,
Supp. 1393, 1398
Wis.
F.
765
("defendants' noncompliance
established state
with
only
procedures
as
and
be characterized
random
can
conduct.");
McDaughtry, 801 F.
Smith v.
unauthorized
1992)
(E.D.
(alleged
Supp.
violations
242-43
Wis.
239,
disciplinary procedure
not "ran
of Wisconsin
conduct).
dom and unauthorized"
majority
Circuit
of the en banc Fifth
While a
apparently
the Par-
Zinermon a "wrinkle" on
considers
dissenting judges
it
characterized
doctrine,4
ratt
as
sweeping
"strong
to the doctrine.
addition"
a
Caine,
(Williams,
dissenting).5
at
J.
943 F.2d
1418
suggests
My
reading
that
of Zinermon
own
Although
majority
point.
it is true that Flor-
misses
procedures
prevent
pre-deprivation
did not have
ida
Zinermon,
issue in
the state
the loss of
at
alleged
hospital employees
were
mental
nevertheless
concerning
"voluntary"
law
to have violated state
incompetent patient. The Court
of an
admission
"[i]t
pointed
is immaterial whether
due
out
alleges
best
as
Burch
is
described
violation
arising
petitioners'
comply
failure to
with
from
admitting involuntary patients,
procedures
or from
specific requirement
petitioners
of a
the absence
patient
competent
is
to consent to
determine whether a
voluntary
Zinermon, 494 U.S. at
admission."
135-136.
proper
duty "to
The officials had a
ensure that
4
(5th
Hardy,
1991),
943 F.2d
1416
Cir.
cert.
Caine v.
(1992).
denied, —U.S.—, 112
S. Ct.
cases,
Nahmod,
For
of other
see Sheldon H.
discussion
(3d
1991).
Rights
Litigation
188-194
ed.
Civil
Liberties
*20
procedures
followed!.]" Zinermon,
were
The case at bar is to Zinermon in that deprivation only the at issue "is 'unauthorized' in the by sense that it was not an act sanctioned law, deprivation rights by but, was a of constitutional an position." Zinermon, official's abuse of his 494 U.S. at (citations omitted). It seems to me that Zinermon only proposition stands not for the that the Due Pro- requires pre-deprivation procedures cess Clause proposition feasible, wherever but also for the that offi- liability they cials are not shielded from sec. 1983 when implement procedures. fail to Zinermon, such As in the delegated state has power to the officials this case the authority deprivation and to effect the com- plained duty implement the concomitant procedural safeguards by established law. agree Judge
I with Easterbrook that Parratt and produced opinions Zinermon, each of which several Supreme easily. the United States Court, do not coexist Judges country around have differed in the inter- pretation application Recognizing of these c&ses. difficulty reconciling I cases, conclude that challenged conduct in the case at bar is not "ran- dom and unauthorized."
H-H HH majority's interpretation If, however, the narrow alleged Zinermon is correct and the violations of the Department's regulations were "random and unautho- provides rized," I must consider whether Wisconsin law adequate remedy. adequacy an The standard advances goals By providing adequate post- of federalism. deprivation disrup- remedies, states can avoid federal legal systems, and at the same time the
tion of their accomplished. purpose of sec. 1983 is majority's perfunctory note, fails to discussion jurisprudence that federal offers few clues however, solving part *21 one commentator refers to as this of what disagree puzzle."6 is Courts about what the "Parratt remedy required for characterized as of a state it to be adequate. majority attempt a
The makes a novel at solution. petitioner majority has The allegedly asserts that because liberty by deprivation a "limited" suffered segregation days, being placed he not enti- for 368 is money damages egregiously no matter how his tled to may rights violated. Thus cer- have been constitutional remedy. adequate provides an tiorari review Majority opinion majority The cites no author- at 848. ity forging between the seriousness of for a connection adequacy post- deprivation of the at issue and the the deprivation remedy.7 It seems to me that these are two separate Once we have determined that issues. alleges deprivation petitioner interest, we of a can common law certiorari must determine whether him whole. make adequacy prong of the have
The courts
imbued
flexibility.
prove
analysis
with
burden
Parratt
inadequacy
plaintiff.
form of redress
is on the
Some
generally
When, however,
state law is
available.
under
qualitatively different from
offers relief too
the state
grant complete
provided under sec. 1983 to
Litigation in State
Section 1983
Steinglass,
Steven H.
.
Courts
(1993),
3-26.23
Nagle,
1393,
Dueñas v.
Supp.
majority
765 F.
7The
cites
1991)
(W.D.
authority
adequacy of certio-
Wis.
for
on the
briefly,
largely
dealt with this issue
rari
review. The court
argue it.
plaintiff
did not
because
redress, or when it is not clear that state law is able to
compensate
plaintiff,
struggle
courts
to assess the
adequacy
remedy.
of the
Zensky,
state law
See David
Taylor,
Change
Parratt v.
16 N.Y.U. Rev. L. & Soc.
(1987-88).
184-85, 191, 195-201
Congruence between remedies available under
sec. 1983 and those available under state law is not
required. Parratt,
On the few occasions when the federal circuit
explored
adequacy
courts have
of state remedies at
length,
capacity
the cases turn on the
of state
to
law
provide
plaintiff
particular depri
redress to the
for the
put
vation claimed. As one
it,
court
"remedies not
responsive
range
intangible
to the
of
interests are not
meaningful
analysis
adequacy
pro
in the
of the
of the
provided."
cess
States,
v. United
702 F.2d
Rutherford
(5th
(refund
1983)
adequate
580, 583
Cir.
not
remedy
plaintiff
compensation
where
seeks
for IRS
harassment).
agent's
Bumgarner
See also
v. Blood
(8th
1984) (state
worth,
remedy
966,
738 F.2d
968
Cir.
inadequate
provided damages,
deemed
because it
not
property
value);
return of
with sentimental
Parrett v.
(7th
1984)
City Connersville,
737 F.2d
Cir.
(grievance procedure unable to award financial corn-
pensation
inadequate
compensate police
deemed
deprived
job
process).8
officer who was
of without due
question
The
is whether Wisconsin's common law
provides
certiorari review
relief essential for redress of
petitioner's
alleg-
the
edly wrongful placement
loss of
associated with his
disciplinary segregation.
petitioner argues
inadequate
The
that certiorari is
for
Judge Sundby
the reasons
set forth in his dissent in
Kolb,
Casteel v.
(Ct.
I with petitioner's modicum of is so valueless remedy incapable compensating peti- "adequate" under the constitution. tioner for its loss is forth, I For the reasons set dissent.