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July 7, 1983

LARRY C. HOLMES, Plaintiff,
BENJAMIN WARD, as Commissioner of Correction of the City of New York, WILLIAM BIRD, MR. LONG, C.O., Brooklyn House of Detention for Men, and JOHN DOE, Defendants

The opinion of the court was delivered by: NICKERSON


 NICKERSON, District Judge

 Plaintiff brought this action under 42 U.S.C. § 1983 to redress an alleged deprivation of his interests in personal security protected by the Fourteenth Amendment. To this federal claim he joined negligence claims under New York state law. Defendants move for summary judgment.

 On this motion the court accepts the facts stated in plaintiff's affidavit and draws all permissible inferences in his favor. Bianco v. Board of Trustees of Local 816, 494 F. Supp. 206, 207 (E.D.N.Y. 1980). The pertinent facts, so viewed, are as follows.

 On August 16, 1978, at about 7:30 p.m., while a pretrial detainee at the Brooklyn House of Detention for Men, plaintiff was violently assaulted by Centeno Rios, another inmate. Officers witnessed the attack and heard Rios threaten to kill plaintiff. By 9:30 p.m. both plaintiff and Rios were put in separate cells on the third floor. Captain Quevedo ordered Correction Officer Colmer, then on duty on the floor, to post a notice that plaintiff and Rios were not to be allowed out of their cells at the same time. An officer informed plaintiff that he and Rios would not be locked out simultaneously. Following customary procedure Colmer wrote out in his own hand the so-called alternate lockout order and posted it on the third floor bulletin board. Inmates had access to the bulletin board, and a large fan operated nearby.

 At least one of two officers who came on duty about midnight saw the alternate lockout order on the bulletin board. However, according to their depositions, none of the three officers who arrived on duty at 8:00 a.m. the next day, including defendants Bird and Long, saw the order. Their testimony does not show whether they looked at the bulletin board. But, according to a later report of the Deputy Warden, the order had "disappeared" from the bulletin board by the time of lock-out at 8:30 a.m.

 That morning, supposing that he would be locked out separately from Rios, plaintiff left his cell to take a shower. When told that his wife was calling, plaintiff went to the telephone where Rios attacked him from behind and smashed his face into a gate of bars. Bleeding profusely, plaintiff was taken to the prison clinic and then by ambulance to a hospital. He was in surgery for three to four hours. For several months thereafter he suffered from recurrent severe headaches and occasional dizziness and nausea. His headaches have since become less frequent and less severe. A large scar on his face is permanent.

 Plaintiff claims that defendants deprived him of a liberty interest -- his right to be secure in his person -- without due process. He urges that the prison's procedures were inadequate to ensure that he was kept apart from an inmate who had threatened to take his life. Aside from a handwritten note on a bulletin board exposed to acts of God and inmates, there were no measures taken to protect him from a man such as Rios. There was no established procedure for making an entry on locator cards used to keep track of inmates, or in the log book in which inmate movements, officers' tours of the area and other matters were noted. Nor was there a requirement that one shift tell the next of the need for alternate lockouts.

 Defendants argue first that the facts show that they were at worst negligent and that a § 1983 claim based on a due process violation requires greater culpability, and second that state tort law provides plaintiff all the process he is due.

 Defendants' first contention was addressed by the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). The Court ruled that § 1983 contains no state of mind requirement in addition to that of the underlying constitutional provision allegedly violated, and that the Fourteenth Amendment may protect against negligent deprivations.

 Defendants' second argument requires more extensive analysis. The Parratt case concerned the negligent deprivation of property by a random and unauthorized official act. Parratt, an inmate, ordered by mail certain hobby materials. In violation of prison procedures two prison employees, rather than Parratt, signed for the packages when they arrived. When he asked for them prison officials could not find them. He sued, alleging a § 1983 claim for the negligent loss. The Supreme Court reasoned that, since a hearing before such an unpredictable deprivation would have been impracticable if not impossible, a postdeprivation hearing was sufficient. The Court held that because a state tort action would afford such a hearing Parratt was provided the process he was due. Id. at 541-46.

 The twin holdings of the Parratt case -- affording constitutional protection against negligent deprivations, but denying a § 1983 action where such protection was provided by an adequate state remedy -- have not led the lower courts to develop a uniform approach. Instead, they have based their different analyses on one or more of three sets of distinctions: (1) property vs. liberty interests; (2) negligent vs. intentional deprivations; and (3) random and unauthorized official acts vs. established procedure.

 Some courts have focused on the difference between property and liberty interests in determining whether state tort remedies provide constitutionally adequate procedure. For example, the Ninth Circuit in Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir. 1981), rev'd on other grounds, U.S. , 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983), stated that a case involving liberty interests is "of a wholly different nature" than one involving property interests and refused to apply the Parratt decision to the former. See also Howse v. DeBerry Correctional Institute, 537 F. Supp. 1177 (M.D. Tenn. 1982). But see Eberle v. Baumfalk, 524 F. Supp. 515 (N.D. Ill. 1981). This view finds support in Justice Blackmun's concurring opinion in the Parratt case. He did "not read the Court's opinion as applicable to a case concerning deprivation of life or of liberty." 451 U.S. at 545.

 Although for reasons detailed below the distinction between liberty and property interests has significance in determining what due process requires, clearly the analysis in the Parratt majority opinion is not per se inapplicable to deprivations of liberty interests. Indeed, that opinion relied on Ingraham v. Wright, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977), in which the court found no predeprivation procedures necessary for the reason, among ...

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