dissenting.
I part company with the majority because I read the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), to dictate a different result. In Parratt, the Court considered whether “mere negligence will support a claim for relief under § 1983 ....” Id. at 532, 101 S.Ct. at 1911. The polestar of its analysis was “the complex interplay of the Constitution, statutes and facts” of the particular case. The Court eschewed “a single, general principle, however just that principle may be in the abstract ____” Id. at 531-32, 101 S.Ct. at 1911. Thus, the question presented here is not the abstract one of whether, as a general principle, negligence may support a § 1983 claim. Rather, the issue is whether plaintiff, under the facts of this case, has satisfied the specific requirements of § 1983.
Looking to the language of the Fourteenth Amendment and § 1983, the Parratt Court identified four elements which are necessary to any § 1983 claim purporting to be founded on a violation of the Due Process Clause of the Fourteenth Amendment.1 First, the conduct complained of must have been committed by a person acting under color of state law. Second, an interest in life, liberty, or property must be implicated. Third, the conduct complained of must amount to a deprivation. And fourth, the state must have failed to provide due process of law. Id. at 535-37, 101 S.Ct. at 1912-14. The Court then applied this legal standard to the facts in Parratt.
The case before us is determined by the application of this four-part analysis. First, the defendants’ actions in this case were clearly under color of state law. See Monroe v. Pape, 365 U.S. 167, 172-85, 81 S.Ct. 473, 476-83, 5 L.Ed.2d 492 (1961). Defendants do not argue otherwise.
Second, as the majority holds, plaintiff’s claim falls within the scope of his Fourteenth Amendment liberty interest in personal security. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). A prison inmate retains his liberty interest except to the extent that it is “fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.” Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984). Plaintiff’s interest in being free from assault was surely not inconsistent with his status as a prisoner or with any legitimate penological objective.
Third, the conduct complained of constitutes a deprivation. The Supreme Court held that the negligently caused loss of property in Parratt “[unquestionably ... amounted to a deprivation.” 451 U.S. at 536-37, 101 S.Ct. at 1913 (footnote omitted); see Holman v. Hilton, 712 F.2d 854, 856 (3d Cir.1983) (“section 1983 affords a remedy for negligent deprivations”). I can think of no persuasive reason why a negligently caused loss of a liberty interest is any less of a deprivation.
*834Fourth, and finally, did the State of New Jersey provide due process of law? The state could not, of course, provide any predeprivation procedure. It has seen fit, however, to deny any postdeprivation remedy against defendants as well. Thus, we are not called upon to determine what would constitute adequate procedures in these circumstances. Furthermore, we need not consider the separate issue of what conduct might constitute a violation of substantive due process “even if undertaken with a full panoply of procedural protection” because it is “antithetical to fundamental notions of due process.” Parratt v. Taylor, 451 U.S. at 545, 101 S.Ct. at 1918 (Blackmun, J., concurring). Since some procedural process is due when a person, acting under color of state law, deprives an individual of a liberty interest, the Due Process Clause of the Fourteenth Amendment has been violated in this case.2 Therefore, plaintiffs claim is cognizable under § 1983.
This conclusion does not implicate a significant increase in § 1983 actions founded on alleged violations of the Due Process Clause because, as a general matter, states do not bar postdeprivation actions against their employees. States remain free, under Parratt, to provide an adequate postdeprivation remedy for their employees’ negligent deprivations of property and negate the possibility of a § 1983 claim based on the denial of procedural due process. The reasoning in Parratt suggests that the same is true in the liberty context. 451 U.S. at 537-44, 101 S.Ct. at 1913-17; see Thibodeaux v. Bordelon, 740 F.2d 329, 334-37 (5th Cir.1984) (“no reason to differentiate between liberty interests and property interests” in the context of procedural due process) (Wisdom, J.). And, of course, that plaintiff “might not be able to recover under these remedies the full amount which he might receive in a § 1983 action is not ... determinative of the adequacy of the state remedies.” Hudson v. Palmer, — U.S. at —, 104 S.Ct. at 3204; Parratt v. Taylor, 451 U.S. at 543-44, 101 S.Ct. at 1916-17.
My analysis implicitly rejects the contention that a prisoner cannot succeed under § 1983 for a deprivation of his Due Process liberty interest in circumstances where the Eighth Amendment “deliberate indifference” standard would not be satisfied. Parratt mandates that this contention be rejected unless, under the Due Process Clause, prisoners’ liberty interests are to be given less protection than their property interests. Furthermore, consistency does not require that the standards under the two provisions be the same. On the one hand, there is a constitutional violation whenever the Eighth Amendment “deliberate indifference” standard is satisfied, since the violation is the deliberate indifference itself. On the other hand, a negligent deprivation of a liberty interest amounts to a violation of procedural due process only where the state fails to provide adequate postdeprivation procedures, since for Due Process Clause purposes “the State’s action is not complete until and unless it provides or refuses to provide a postdepriVation remedy.” Hudson v. Palmer, — U.S. at —, 104 S.Ct. at 3204. In sum, the causes of action under the Eighth and Fourteenth Amendments are birds of entirely different feathers.
*835I disagree with the majority’s holding essentially because it finds no deprivation in this case. It does so without quoting the essential language in Parratt, which holds that plaintiff’s loss in that case “even though negligently caused, amounted to a deprivation.” 451 U.S. at 536-37, 101 S.Ct. at 1913 (footnote omitted).
Justice Powell, concurring in the result in Parratt, “would not” have held, under the facts of that case, that “a negligent act ... works a deprivation in the constitutional sense.” Id. at 548, 101 S.Ct. at 1919. That he refused to join the majority opinion supports my reading of Parratt. Although there is much to be said for Justice Powell’s opinion, which “would avoid trivializing the right of action provided in § 1983,” we are not free to weigh the persuasiveness of his approach against that of the Court’s and choose for ourselves which to apply.
Our court feels constrained to hold in this case that mere negligence does not constitute a deprivation, apparently because it equates two wholly different questions. The majority first notes that Parratt did not purport to announce a turnaround from the Supreme Court’s prior position that traditional torts do not become constitutional violations simply because they are committed by state officials. On this basis it then concludes that the Parratt Court could not have held that mere negligence amounts to a deprivation. Although it is, of course, true that the Supreme Court did not hold that mere negligence by a state official amounts to a constitutional tort cognizable under § 1983, it did hold that such negligence amounts to a deprivation. Therefore, if the other elements of a § 1983 claim purporting to be founded on a violation of the Due Process Clause of the Fourteenth Amendment are made out; i.e., conduct under color of state law, a life, liberty or property interest, and a lack of adequate due process; then the § 1983 claim is cognizable.
The majority focused on the abstract, general question, eschewed by the Supreme Court, of whether mere negligence amounts to a constitutional violation cognizable under § 1983. Consequently, it failed to answer properly whether plaintiff has satisfied the specific requirements of the statute, particularly the “deprivation” requirement, as they were analyzed by the Supreme Court in Parratt. Plaintiff, in my view, has satisfied those requirements.
I would affirm.
. This case does not call upon us to consider § 1983 claims founded on alleged violations of constitutional provisions other than the Due Process Clause.
. In this case, the mere right to file an action is tantamount to no process at all since, under New Jersey’s immunity statute, the action must be terminated prior to any proceedings on the merits. It is true that due process does not always require proceedings on the merits. For instance, "the state certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982). But this state immunity statute denies any "opportunity for [a] hearing appropriate to the nature of the case.” Id. at 428, 102 S.Ct. at 1153 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950)). Only a federally-recognized immunity justifies this result, otherwise "a state immunity defense ... would transmute a basic guarantee into an illusory promise ____" Martinez v. California, 444 U.S. 277, 284 n. 8, 100 S.Ct. 553, 558 n. 8, 62 L.Ed.2d 481 (1980) (quoting Hampton v. Chicago, 484 F.2d 602, 607 (7th Cir.1973), cert. denied 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974)).