O'Neill v. Carlisle

United States Court of Appeals
For the First Circuit

No. 99-1180

KATHERINE M. O'NEILL,

Plaintiff, Appellant,

v.

CHARLES D. BAKER, in his individual capacity; LINDA K. CARLISLE, in
her individual capacity; RUTH A. MCDERMOTT, in her individual
capacity; COMMISSIONER OF ADMINISTRATION AND FINANCE OF THE
COMMONWEALTH OF MASSACHUSETTS; and DEPARTMENT OF SOCIAL SERVICES OF
THE COMMONWEALTH OF MASSACHUSETTS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya, Boudin, and Lynch,
Circuit Judges.

Maura A. O'Neill for appellant.
Salvatore M. Giorlandino, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General of Massachusetts, was on brief,
for appellees.
April 12, 2000
 LYNCH, Circuit Judge. The district court entered summary

judgment against the claims of Katherine O'Neill, a veteran

Massachusetts social worker, that the Department of Social Services

(DSS) and her supervisors terminated her employment without affording

her pre-termination rights to procedural due process.1 The complaint

sought lost pay and benefits, compensatory damages, punitive damages,

attorney's fees, and "such other relief the court deems just." We

affirm the grant of summary judgment.

I.

Because this appeal challenges a summary judgment decision,

we construct this description of the events from the undisputed facts

and from inferences drawn in the plaintiff's favor. See Thomas v.

Eastman Kodak Co., 183 F.3d 38, 42 (1st Cir. 1999), cert. denied, 68

U.S.L.W. 3526 (U.S. Feb. 22, 2000) (No. 99-1127). Katherine O'Neill

was originally hired as a social worker by the Department of Public

Welfare in 1975; she went to work for DSS in 1983 and was sent to the

Chelsea DSS office in 1990. O'Neill was a tenured employee under the

Massachusetts civil service system and a member of the public

employees' union, the Alliance of AFSCME-SEIU/AFL-CIO, Local 509. At

the time of her termination in 1993, she had the job title of Social

1 Her civil rights action was brought against DSS, Linda
Carlisle, then DSS Commissioner, Charles Baker, then Commissioner of
Administration and Finance of the Commonwealth of Massachusetts, and
Ruth McDermott, the Area Director of the DSS's Chelsea office. The
three individuals, Carlisle, Baker, and McDermott, were sued in both
their individual and official capacities.

-3-
Worker III and worked as a screener and investigator of allegations of

child abuse and neglect.

Under state law, DSS must start to investigate and evaluate

a report of a physically or emotionally injured child within two hours

of initial contact and complete the investigation within 24 hours if

there is reason to believe the child is in immediate danger. See Mass.

Gen. Laws ch. 119, § 51B(1). Otherwise, the investigation and

evaluation must be started within two days and completed within ten

days. See id. The investigator's report becomes the basis for further

actions, which can include taking the child into temporary custody,

notifying the district attorney and creating a service plan for the

child and family within 45 days, and/or making other social services

available to the child and family. See id. § 51B(3)-(5). O'Neill's

job involved her in the screening of the initial report and the later

investigation.

O'Neill's work history reveals both considerable conflict

with others in the Chelsea office and a series of complaints from her

immediate supervisor about her absences from work and her failure to

complete her reports in a timely manner. In July 1993, Ruth McDermott,

the Area Director for the Chelsea office, met with O'Neill about her

chronic tardiness and absences from work. O'Neill attributed these

absences to a chronic illness that was exacerbated by the stress of her

job. McDermott told O'Neill that she would continue to monitor her

-4-
absences. At the same time, McDermott gave O'Neill a letter that

detailed her absences and lateness, reminded her of the procedures for

calling in late or sick, and notified her that failure to make

"immediate and consistent improvement" would lead to "disciplinary

action up to and including suspension."

O'Neill continued to be absent or tardy periodically, and

on September 17, 1993, McDermott met with O'Neill and suspended her

without pay for one day. McDermott began the meeting by reading from

a letter that listed her absences and tardiness, reminded her when she

was expected to report to work, and warned her that the consequences of

failing to make improvement included termination. By memo dated

October 6, 1993, McDermott advised O'Neill that while there had been

some improvement, her performance and attendance record continued to be

unsatisfactory. McDermott urged O'Neill to "give more attention to

these issues" and advised her that failure to make improvement would

result in further disciplinary action "up to and including suspension."

On October 22, 1993, McDermott met with O'Neill and suspended

her for three days without pay. McDermott again handed O'Neill a

letter at the beginning of the meeting and read from it. The letter

detailed the days that O'Neill had been absent or tardy since the

September suspension. The letter further said that "any failure to

make immediate and consistent improvement in the area's [sic] outlined

above will result in you being terminated from your employment."

-5-
During most of this period, O'Neill was on a work plan designed to

improve her performance. On November 3, 1993, O'Neill was informed

that she was again being placed on a work plan (her last work plan had

expired on October 31, 1993). The written work plan set forth DSS's

requirements and expectations and warned O'Neill that failure to

improve her attendance could lead to termination. McDermott repeated

that warning to O'Neill on November 17, 1993.

On December 17, 1993, McDermott sent O'Neill a memorandum

entitled "Contemplated Action Hearing." It instructed O'Neill to meet

with her that day to discuss her attendance and work plan and, "[d]ue

to the nature of the meeting," "advis[ed] [O'Neill] of [her] right to

have Union representation." The meeting was rescheduled to December 20

and then to December 23 to permit O'Neill to have a union

representative present.

On December 23, 1993, McDermott met with O'Neill and her

union representative. McDermott read aloud from a letter of that date.

The letter said that after review "of all the facts," including those

presented at the meeting of December 23, there was just cause to

terminate O'Neill's employment based on her continued pattern of

tardiness and absences. It listed eight days since O'Neill's last

suspension when she was absent or tardy for a period during the work

day. McDermott's affidavit states that O'Neill did not, despite the

opportunity provided at the meeting, offer any explanation for her

-6-
tardiness and absenteeism or any evidence that her discharge was not

warranted. McDermott's affidavit also says that "[h]ad [O'Neill]

presented compelling reasons indicating that the contemplated discharge

was unwarranted, [McDermott] would have reconsidered whether there was

just cause to discharge her." O'Neill, who also filed an affidavit,

does not dispute this.

McDermott says that she decided to terminate O'Neill on

December 17, 1993 and that she drafted the termination letter dated

December 23 "prior to the hearing in consultation with the Department's

labor relations office as was typical when a discharge was

contemplated." The termination letter was mailed to O'Neill the day

before the termination meeting took place, and O'Neill received it at

her home on December 24, 1993. McDermott's affidavit says that it was

a mistake for her secretary to have mailed the letter, which bore

McDermott's signature, before the termination meeting.

The Massachusetts civil service law requires that certain

particulars be followed before a tenured, covered employee like O'Neill

is terminated. See Mass. Gen. Laws ch. 31, § 41 (requiring that the

employee be given written notice, "which shall include the action

contemplated, the specific reason or reasons for such action and a copy

of [certain] sections [of the civil service provisions]"). O'Neill

says that she was not told in advance of the meeting that she was to be

-7-
terminated2 and that she was not given a copy of the relevant civil

service provisions, as required by the statute. Under the civil

service law, O'Neill had the right to challenge her termination and the

termination procedures in two ways. She could appeal within ten days

to the Civil Service Commission, or she could bring a civil suit for

reinstatement in state court. See Mass. Gen. Laws ch. 31, § 42.

Alternatively, under state law O'Neill could pursue her

remedies under the collective bargaining agreement and take the matter

to binding arbitration. See Mass. Gen. Laws ch. 150E, § 8. At the

recommendation of her union representative, O'Neill decided to pursue

arbitration. To do that, O'Neill waived her rights to appeal the

discharge "to any other forum, including the Civil Service Commission."

At arbitration, the union did not deny O'Neill's absences and

tardiness, but instead argued that many of these absences were

justified by illness and that absences, tardiness, and flexible work

hours were accepted practice at the Chelsea office. The arbitration

resulted in a decision on March 29, 1996 that upheld the termination of

O'Neill's employment as being amply supported by just cause. The

arbitrator found that there was no evidence that any other Chelsea

social worker had the "significant time and attendance problem" that

2 We understand O'Neill, in light of the undisputed fact that
she received the suspension letters that specifically warned of the
possibility of termination of employment, to be saying that she did not
receive prior explicit notice that the purpose of the December 23
meeting was to terminate her employment.

-8-
O'Neill had. And she concluded that O'Neill's behavior adversely

impacted DSS's ability to meet the statutory time requirements and thus

to help children at risk and their families. Noting some of O'Neill's

strengths as a social worker, the arbitrator called this case "a very

sad story." We agree.

O'Neill made no effort to obtain judicial review of the

arbitrator's decision, but instead filed a federal civil rights lawsuit

on December 23, 1996. The complaint, as amended, sought compensatory

damages, punitive damages, attorney's fees, and "such other relief the

court deems just." In support of her claim for damages, O'Neill says

that she was unable to obtain employment as a social worker in the two

years between her termination and the conclusion of the arbitration.

It was not until after the arbitral award that she retrained for

employment in a different field. In the interim, she exhausted her

savings and lost her health insurance. In addition, she claims that

she was about one year away from vesting in the Commonwealth's

retirement plan. From comments by her counsel at oral argument, it

appears that, despite the fact that the termination was complete and

upheld at arbitration, O'Neill thought this federal case would be a

vehicle to obtain an injunction, which would have reinstated O'Neill to

-9-
her position at least long enough for her to vest in the retirement

system.3

II.

As in this court, O'Neill's arguments to the district court

were a melange of different theories. On December 21, 1998, on a

second summary judgment motion,4 the court dismissed the claims

pertinent to this appeal. The district court stated that O'Neill did

not have a constitutional right to a pre-termination hearing "in these

circumstances," that "the post-termination relief available to her

under state law was constitutionally adequate," and that any challenge

to the arbitral award was not properly before the court. We review the

entry of summary judgment de novo, see National Foreign Trade Council

v. Natsios, 181 F.3d 38, 49 (1st Cir. 1999), cert. granted, 68 U.S.L.W.

3345 (U.S. Nov. 30, 1999) (No. 99-474), and may affirm on any ground

fairly presented in the record, see Houlton Citizens' Coalition v. Town

of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

III.

3 This is extremely doubtful on a procedural due process claim.
See Carey v. Piphus, 435 U.S. 247, 259-64 (1978). It would make little
sense to order an employee reinstated to a position -- from which it
has been finally determined, in full post-termination proceedings, that
she had been validly terminated -- because of a flaw in the pre-
termination notice and opportunity to be heard.
4 On January 8, 1998, the district court entered summary
judgment on all claims against former Commissioner Baker. The
plaintiff does not challenge that dismissal on appeal.

-10-
 We quickly dispose of a number of the plaintiff's claims.

O'Neill wisely chose not to appeal the district court's decision that

the question whether the termination was supported by just cause was

not before it, nor was review of the arbitral award. O'Neill's claim

is clearly a procedural due process claim, not a substantive due

process claim.

O'Neill also properly abandoned her claim for monetary

damages against the individual defendants in their official capacities.

Those claims are foreclosed by Will v. Michigan Department of State

Police, 491 U.S. 58, 70-71 (1989). See also Wang v. New Hampshire Bd.

of Registration in Med., 55 F.3d 698, 700 (1st Cir. 1995) (noting that

"it is well settled 'that neither a state agency nor a state official

acting in his official capacity may be sued for damages in a section

1983 action'") (quoting Johnson v. Rodriguez, 943 F.2d 104, 108 (1st

Cir. 1991)).

As to her claims for injunctive and monetary relief against

DSS, they are barred by the Eleventh Amendment. The Supreme Court has

clearly said that the Eleventh Amendment bars federal suits by citizens

against the state or state agencies5 and that this "jurisdictional bar

5 O'Neill has made no claim that the DSS should not be
considered an arm of the state for Eleventh Amendment purposes.
Therefore, we assume that it is. See Fred v. Roque, 916 F.2d 37, 39
n.4 (1st Cir. 1990). Additionally, O'Neill has offered no evidence
that the state has waived its immunity. See College Sav. Bank v.
Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219, 2226
(1999) (setting forth the requirements for finding waiver).

-11-
applies regardless of the nature of the relief sought." Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). This does

not mean that an aggrieved individual like O'Neill has no recourse: the

Eleventh Amendment is not a bar to the naming of a state official,

rather than the state or agency, as a defendant. See Erwin

Chemerinsky, Federal Jurisdiction § 7.5, at 389 (2d ed. 1994). A

plaintiff may, subject to a number of caveats, obtain injunctive relief

against state officials and also, if she sues the officials in their

individual capacities, recover monetary relief from them. Thus, we

proceed to the claims made against the individual defendants.

O'Neill's claims against Carlisle, the former Commissioner

of DSS, were properly dismissed. O'Neill's claims against Carlisle are

premised on a respondeat superior theory, but such a theory cannot

support a § 1983 claim against a supervisor. See Monell v. Department

of Soc. Servs., 436 U.S. 658, 691-93 (1978); Bowen v. City of

Manchester, 966 F.2d 13, 20 (1st Cir. 1992). Instead, to hold a

supervisory employee liable under § 1983, the plaintiff must show that

the supervisor "possessed either the state of mind for the particular

constitutional violation or deliberate indifference, and . . . played

a causal role in plaintiff's constitutional deprivation." 1 Sheldon H.

Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section

1983, § 3:91, at 3-241 (4th ed. 1999). McDermott's affidavit says that

Carlisle was not consulted about this matter and did not order her to

-12-
take any actions regarding O'Neill's case. In her answers to

interrogatories, Carlisle insisted that she had no involvement in

O'Neill's firing. These statements are undisputed. Therefore, there

is no factual basis for a claim against Carlisle.

All that remains are the claims against McDermott. It is

undisputed that O'Neill's status, under state law, as a tenured civil

service employee gave her a property interest in her employment that is

protected by constitutional due process guarantees. See Cleveland Bd.

of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985); Cronin v. Town of

Amesbury, 81 F.3d 257, 260 n.2 (1st Cir. 1996). Thus, O'Neill was

entitled to the constitutional minimum of "some kind of hearing" and

"some pretermination opportunity to respond."6 Loudermill, 470 U.S. at

542 (internal quotation marks omitted).

The precise nature of her pre-termination procedural due

process rights is important. Loudermill held that a very limited

hearing prior to termination was sufficient, provided that it was

followed by a more comprehensive post-termination hearing. See id. at

545-46. The pre-termination hearing was to be "an initial check

against mistaken decisions -- essentially, a determination of whether

there are reasonable grounds to believe that the charges against the

employee are true and support the proposed action." Id. The pre-

6 This is not an instance where the need for a pre-deprivation
hearing is excused by "the necessity of quick action by the State."
Parratt v. Taylor, 451 U.S. 527, 539 (1981).

-13-
termination process "need only include oral or written notice of the

charges, an explanation of the employer's evidence, and an opportunity

for the employee to tell his side of the story." Gilbert v. Homar, 520

U.S. 924, 929 (1997) (characterizing Loudermill).

The state procedures prescribed by chapter 31, sections 41-44

of the Massachusetts General Laws clearly fulfill the due process

requirements for pre-termination notice and opportunity to be heard.

And these requirements are appropriately reflected in DSS's Labor

Relations Manual. Thus, O'Neill's real complaint is that these

procedures were not followed in her case and that this failure to

follow state procedures resulted in violation of her due process

rights.

The defendants argue that O'Neill's claims against McDermott

should fail.7 First, they argue that O'Neill received all the process

she was due under the Constitution. Second, they say that even if the

pre-termination procedures were deficient, they were made so by the

random and unauthorized conduct of state officials and remedied by

adequate post-deprivation procedures.

A. Pre-Termination Procedures and Due Process

Beginning with the defendants' first argument, the record

shows that the pre-termination proceedings provided to O'Neill did not

7 In light of our holding, we need not examine the other
arguments the defendants make in support of the grant of summary
judgment.

-14-
deprive her of her due process rights. Loudermill makes clear that the

pre-termination hearing "need not be elaborate" as long as the

"essential requirements of due process . . . [:] notice and an

opportunity to respond" are provided. Loudermill, 470 U.S. at 546.

The letters and memoranda given to O'Neill in connection with her prior

suspensions and work plans clearly put her on notice that termination

could result if she failed to improve her attendance and tardiness.

O'Neill was clearly provided notice of the final meeting on December

23, told the meeting was about her attendance and "[c]ontemplated

[a]ction," and told she had a right to have a union representative

there "[d]ue to the nature of the meeting." Indeed, the notice told

her the meeting was a "hearing." And at the meeting itself, it is

undisputed that the charges were clearly laid out and that O'Neill was

given an opportunity to give her side of the story. She had also been

given the opportunity to respond on September 17, October 22, and

November 3, when she was told that failure to improve her attendance

could lead to termination.

O'Neill says that the essential due process requirements were

not fulfilled because she did not have specific notice that the purpose

of the December 23 meeting was to discuss her impending termination,

because the decision to terminate her was made prior to the meeting,

and because the termination letter was drafted, signed, and mailed

-15-
prior to the meeting.8 These facts, she says, deprived her of real

notice and a meaningful opportunity to respond. The plaintiff's

argument is overstated. First, there is no specific due process

requirement that an individual know, prior to a contemplated action

hearing, precisely what action is contemplated where there has been

prior notice that termination could result if there were no

improvement.9 The prior meetings and letters clearly provided O'Neill

with notice of the charges DSS was making against her and she was

plainly placed on notice that termination would be one of the actions

to be contemplated at future meetings. Further, the fact that O'Neill

was advised of her right to have a union representative present and

that the meeting was a hearing should have, in a practical sense,

alerted her that this meeting would more likely involve more serious

discipline than had the prior meetings. Second, although McDermott

8 The latter two claims essentially amount to a "prejudgment"
argument -- a claim that her case was improperly pre-judged, or decided
without any opportunity for her to influence her employer's decision.
9 O'Neill may have a claim that some portions of the state law
-- for example, the state law requirement that she be provided with
prior notice of the action contemplated -- were violated in her case.
Such claims, involving state procedural guarantees that are above and
beyond constitutional due process requirements, are not properly before
us. See Pennhurst, 465 U.S. at 106 ("[I]t is difficult to think of a
greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to state
law."); Roy v. City of Augusta, 712 F.2d 1517, 1522-23 (1st Cir. 1983)
(analyzing a § 1983 claim and noting that "[m]ere violations of state
law do not, of course, create constitutional claims"). Thus, we
examine only those violations of state law that may have resulted in
the deprivation of the plaintiff's due process rights.

-16-
acknowledges that she made the decision to terminate O'Neill and

drafted the termination letter prior to the hearing, her testimony is

uncontested that she would have "reconsidered whether there was just

cause to discharge [O'Neill]" if O'Neill had offered "compelling

reasons indicating that the contemplated discharge was unwarranted."

There is no constitutional infirmity because the planned termination

was subject to revision if O'Neill was able to contest the validity of

the grounds for termination. Instituting termination proceedings and

preparing the necessary documentation in advance of the final pre-

termination hearing are not deprivations of due process rights. As to

the premature mailing of the letter, the only evidence is that this was

done in error. While unfortunate, the mailing of the letter neither

impacted the timing of McDermott's decision nor the quality of

O'Neill's opportunity to defend herself.

A more serious issue would arise if O'Neill had been deprived

of a meaningful opportunity to say anything in her defense at the

December 23 meeting (and the earlier meetings). But it is

uncontradicted that O'Neill did have the opportunity to respond at each

of the meetings, although she apparently did not take advantage of this

opportunity at the December 23 meeting. It is possible that

McDermott's reading of the letter, which said "it has been determined

that there exists just cause to terminate you," at the beginning of the

-17-
meeting gave O'Neill the impression that any response would be futile.10

Nonetheless, it is undisputed that O'Neill did have an opportunity to

respond and that McDermott would have reconsidered the termination had

O'Neill presented sufficient evidence.

In short, the record reveals no genuine issue of material

fact as to O'Neill's prior notice of both her employer's

dissatisfaction and the likelihood that severe consequences (possibly

including termination) would follow if she did not do better.

Similarly, the uncontradicted evidence shows that O'Neill (whether or

not she exercised it) had a meaningful opportunity to speak in her own

defense at a series of meetings, up to and including the meeting of

December 23. Because the facts, even when viewed in the light most

favorable to O'Neill, fail to make out a due process violation, the

district court did not err in disposing of the claims against McDermott

by way of summary judgment.

B. Random and Unauthorized Acts and Adequate Post-Deprivation
Procedures

It is also reasonably clear that much, and possibly all, of

O'Neill's due process claim against McDermott would be barred by the

so-called Parratt-Hudson doctrine. See Parratt v. Taylor, 451 U.S. 527

(1981); Hudson v. Palmer, 468 U.S. 517 (1984). This court summarized

10 The better practice might have been not to start the hearing
by reading the letter, but the Constitution requires only an initial
check against erroneous decisions, not that the state follow best
practices.

-18-
the doctrine in Lowe v. Scott, 959 F.2d 323 (1st Cir. 1992), as

follows:

When a deprivation of a property interest is
occasioned by random and unauthorized conduct by state
officials, . . . the [Supreme] Court has repeatedly
emphasized that the due process inquiry is limited to the
issue of the adequacy of postdeprivation remedies provided
by the state.

Id. at 340. More recently, in Herwins v. City of Revere, 163 F.3d 15

(1st Cir. 1998), we said that there is "no denial of procedural due

process, even by the official," where the prerequisites of random and

unauthorized conduct and adequate post-deprivation remedies are met. 11

Id. at 19.

The Parratt-Hudson doctrine might have been undermined by the

Supreme Court's later decision in Zinermon v. Burch, 494 U.S. 113

(1990), but this court has already rejected that view. See Herwins,

163 F.3d at 19. In Herwins, we viewed Zinermon as a case in which

state law did authorize the procedure followed (albeit

unconstitutionally), so that the act of the officials could not be

described as "random and unauthorized"; Zinermon does, however, require

that "courts scrutinize carefully the assertion by state officials that

their conduct is 'random and unauthorized,'" Lowe, 959 F.2d at 341; and

it is well to remember that the Parratt-Hudson doctrine is directed

11 The doctrine has been consistently applied in this circuit.
See Cronin, 81 F.3d at 260; Romero-Barcelo v. Hernandez-Agosto, 75 F.3d
23, 33 (1st Cir. 1996); Brown v. Hot, Sexy & Safer Prods., Inc., 68
F.3d 525, 535-37 (1st Cir. 1995).

-19-
only to claims that due process was denied and not to other kinds of

constitutional violations. Nevertheless, the Parratt-Hudson doctrine

plays an important part in allowing procedural claims to be resolved in

state forums where states do provide adequate remedies.

In this case, it is reasonably clear that even if there was

a lack of adequate notice, and we have held that there was not, it

would at most amount to a random and unauthorized act. Indeed, state

law clearly does provide for adequate notice, and there is no

suggestion that either by formal or informal means the state has

authorized the giving of inadequate notice to persons who may be

terminated, or that this was any form of regular practice. Thus, that

aspect of the claim would be barred by Parratt-Hudson even if there

were more substance to the claim of a constitutional violation.

It is less clear whether this would be true of the

"prejudgment" claim concerning the preparation of termination letters

in advance; relying on McDermott's affidavit, O'Neill draws the

inference that preparing termination letters in advance was a

systematic and authorized internal procedure. Since we have concluded

that the practice does not represent unconstitutional "prejudgment," we

need not decide whether the Parratt-Hudson doctrine would bar this

aspect of O'Neill's claim at the present stage or whether further

factfinding and analysis would be necessary to decide whether Parratt-

Hudson applies.

-20-
 Affirmed.

- Concurrence Follows -

SELYA, Circuit Judge (concurring in the judgment). Having

determined that the defendants' actions did not deprive the plaintiff

of procedural due process -- a determination with which I agree -- the

majority then proceeds, in the last four paragraphs of an otherwise

exemplary opinion, to explain why those actions probably were random

and unauthorized. Whether the majority's rumination is right, wrong,

or somewhere in between -- a matter on which I take no view -- I object

to the inclusion of these comments in the opinion for two reasons.

First, they are wholly unnecessary to the result. Second -- and more

important -- the status of the Parratt-Hudson line of cases, in the

albedo of Zinermon, is at best uncertain. It would be one thing if the

exigencies of Ms. O'Neill's appeal required us to enter that doctrinal

swamp in advance of clarification by the Supreme Court. It is quite

another thing to plunge gratuitously into it. Because I believe that

we should refrain from such excursions, I respectfully disassociate

myself from section III(B) of the court's opinion.

-21-