dissenting:
The question presented in this appeal is a narrow one: may a state, when it involuntarily commits persons to the custody of state agents, thereby depriving those persons of the capacity for flight, self defense, or calls for assistance, consistent with the fourteenth amendment relieve those agents of the duty to take reasonable care to prevent third parties from injuring them. No broader issue is presented, for we are not here dealing with the duty of care owed to persons at liberty. No narrower question is presented either, for regardless of the reasons for commitment — civil or criminal, pre-trial or post-trial — every involuntarily committed person is identically deprived of the ability to resort to self help against the acts of third parties.
There was a time in bur history when the government of the United States was so indifferent to the plight of persons involuntarily committed to custody by the states that it condoned hundreds of lynchings per year.1 Among civilized persons in this twelfth decade of the fourteenth amendment, however, I would have hoped that a negative answer to the question presented would no longer be a matter of serious debate. Whatever a state may do in relieving its agents of the obligation to take *836reasonable care in performing other duties, no body politic calling itself humane should assert that the custodians of the involuntarily committed may be relieved of the duty to take reasonable care to prevent harm from befalling their charges.2 Yet six judges of this court unfortunately are of the view that custodians may be relieved of that duty. Because I share a common humanity with the involuntarily committed, I dissent.
I.
The Injury
Robert Davidson, a former inmate of the New Jersey State Prison at Leesburg, suffered serious personal injuries when he was beaten and stabbed by another inmate. In a suit brought in the district court pursuant to 42 U.S.C. § 1983 (1982) he contended that the beating and stabbing occurred because two state prison officers, Joseph Cannon and Robert James, failed to take reasonable care to prevent the incident. The trial court found that Cannon and James did fail to take reasonable care to prevent the incident, and awarded $2,000 in compensatory damages. This court holds unanimously that the district court’s findings of fact are not clearly erroneous. Fed.R.Civ.P. 52(a). Therefore, for purposes of this appeal we agree that the state agents to whom the state entrusted custody of Davidson failed to take reasonable care to prevent a third party from inflicting harm on him.
II.
The New Jersey Scheme for Relieving its Agents of Responsibility
An appreciation of the New Jersey scheme for relieving its agents of responsibility requires an examination of developments in another state. In Muskopf v. Corning Hospital District, 55 Cal.2d 211, 359 P.2d 457, 11 Cal.Rptr. 89 (1961) Justice Traynor, in a typically enlightened opinion, held that the doctrine of governmental immunity in tort had outlived its usefulness. While at that time governmental entities in California and elsewhere claimed sovereign immunity from respondeat superior liability for the acts of their agents and servants, those agents and servants were, like the rest of us, subject to common law remedies except to the extent that judicial, legislative or executive officer immunity doctrines held otherwise. In reaction to Justice Traynor’s opinion the California legislature passed a two-year moratorium on the application of the Muskopf holding while the State Law Review Commission studied the matter further.3
Justice Traynor would simply have made governmental agencies liable on a traditional respondeat superior basis, leaving in place the centuries old common law individual liability in tort of state agents. The Commission proposed a radically different approach. Accepting the proposition that the state could be liable in tort on a respondeat superior basis, it proposed, for the first time, to enlarge the areas in which state agents would enjoy personal immunity, and to make the state’s immunity coextensive.4 The result of the Commission’s efforts was the California Tort Claims Act of 1963.5
Several years later when the New Jersey legislature, observing the New Jersey Supreme Court’s discomfort with sovereign immunity in cases such as B.W. King, Inc. v. West New York, 49 N.J. 318, 325, 230 A.2d 133, 137 (1967), considered the prob*837lem of governmental liability, it adopted the California approach, which recognized that governmental entities were subject to respondeat superior liability, but conferred on state agents in many instances an immunity from common law actions which they had never before in history enjoyed.6 The purpose of the legislature to contract common law liability of state agents is clear, for it declared “that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done.” N.J.Stat.Ann. § 59:1-2 (West 1982). The declaration of purpose refers not to government liability as was the case under common law sovereign immunity, but rather to government duty. That change in focus from the absence of state liability to the absence of state duty is the central feature of the Act. It provides that “[a] public entity is not liable for an injury resulting from an act or omission of a public employee where the public employee is not liable.” Id. § 59:2 — 2(b). Like its California counterpart, the New Jersey Act then provides a series of absolute statutory immunities which eliminate common law remedies historically available against such employees.7
The Tort Claims Act provides that the Attorney General must defend any action brought against a present or former state employee. Id. § 59:10A-1. It provides, moreover, that the State shall provide indemnification to present and former employees except for punitive or exemplary damages. Id. § 59:10-1. Thus under the Tort Claims Act the state’s indemnification and defense undertaking, and the broad provisions for official immunity, are directly related. The state has undertaken to provide defense of claim and liability insurance for its employees, as a self-insurer, at public expense. Simultaneously, however, the state has attempted to protect its fisc, by conferring on its employees and retaining for itself absolute immunity from recovery for certain injuries. And, as is apparent from the Attorney General’s appearance in this appeal, New Jersey construes its statutory defense and indemnification obligations as extending to the defense of actions brought pursuant to 42 U.S.C. § 1983. The state is the real party in interest.
The atmosphere in which the New Jersey Tort Claims Act was considered by the legislature was hardly conducive to dispassionate reflection upon the appropriate balance between the needs of society and the accountability of state agents. At the time the Act was passed, lawsuits still were pending against New Jersey officials growing out of what the plaintiffs in those lawsuits contended were either excessive or inadequate reactions to the civil disturbances in 1967. In that atmosphere, perhaps not surprisingly, the legislature conferred several rather radical immunities on law enforcement officials and on custodians of involuntarily committed persons.
A number of New Jersey’s immunity provisions bear upon the duty owed by custodians toward persons whom the state has placed in their charge. Perhaps the broadest is the provision that “[a] public entity is not liable for any injury caused ... by failing to enforce any law.” N.J.Stat.Ann. § 59:2-4 (West 1982). Moreover “[njeither a public entity nor a public employee is liable for failure to provide police protection service or, if police protection service *838is provided, for failure to provide sufficient police protection service.” Id. § 59:5-4. Thus New Jersey public employees appear to be totally relieved of the duty to prevent even a lynching, for example. The Act also provides, that “[njeither a public entity nor a public employee is liable for failure to provide a medical facility or mental institution, or if such facility or institution is provided, for failure to provide sufficient equipment, personnel or facilities in a mental institution or medical facility.”8 Id. § 59:6-2. When a person has been confined for mental illness (which by definition includes mental deficiency) “[njeither a public entity nor a public employee is liable for ... (b) an injury caused by any person who has been confined ... upon any other person so confined.” Id. § 59:6-7. Finally, “[njeither a public entity nor a public employee is liable for ... (b) any injury caused by: ... (4) a prisoner to any other prisoner.” Id. § 59:5-2b(4). Thus the New Jersey Act treats civilly committed mental patients, and both pretrial detainees and convicted prisoners, in the same manner. It has conferred on the custodians a total immunity from any claim that they failed to exercise any level of care to prevent harm from fellow inmates. Moreover by eliminating liability for failure to provide police protection, New Jersey has relieved non-custodians, as well, of any obligation to prevent such harm.9
Under the New Jersey immunity scheme the state agent’s state of mind is irrelevant. Immunity attaches whether the immunized agent acted or failed to act intentionally, or in reckless disregard of the consequences, or without reasonable care. Thus, under New Jersey law, Davidson could not recover from Cannon or James, or from the state, for the injuries he received at the hands of his fellow inmate under any conceivable set of circumstances. And in this respect the outcome would be the same under New Jersey law had Davidson been a patient in a New Jersey mental institution.
III.
The Federal Liberty Interest
Recognizing that it is beyond the power of the legislature, in California or New Jersey, to relieve state agents acting under color of those states’ laws, of duties imposed by the Constitution, the Attorney General of New Jersey urges that Davidson has no interest protected by the Constitution or laws of the United States. Any' right that he had to personal security from harm by fellow prisoners ended, according to the state, when Davidson was involuntarily committed to the custody of those state agents upon whom New Jersey conferred immunity.
For a brief period in 1976 the Supreme Court appeared to be flirting with the dangerous notion that the liberty clause of the fourteenth amendment had no federal substantive content, except perhaps, such as was set forth explicitly in other provisions of the Constitution. One example of that *839dangerous flirtation is Paul v. Davis, 424 U.S. 693, 710, 96 S.Ct. 1155, 1164, 47 L.Ed.2d 405 (1976), effectively overruling the Court’s holding in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) that there is a federal substantive liberty interest in one’s reputation. According to Paul v. Davis, the due process clause protects the personal liberty to maintain a good repute only if a state positive law creates such an interest in the first place. Other examples of the Court’s tendency toward sapping the liberty clause of federal substantive content were Meachum v. Fano, 427 U.S. 215, 228, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976), holding that a state prisoner had only such right to be free from transfer to more onerous conditions of confinement as could be found in state positive law. The tendency in those cases was to equate for purposes of analysis, the separate terms “life, liberty, or property” in the fourteenth amendment. Indeed the Court majority in those rather ominous opinions made essentially the same analyses with respect to due process protection of claimed personal liberty interests as in modern times it customarily makes with respect to due process protections of property. See, e.g., Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (state law contract right required before employment is protected by due process clause); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (state statutory right to attend school cannot be terminated without due process); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (state law contract right required before employment is protected by due process clause); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (federal statutory entitlement cannot be terminated without due process). Cf., e.g., Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (state law cannot intrude upon federally protected right to contract). The Court’s recognition that property rights are always creatures of some sovereign’s positive law, and thus that the term “property” in the fourteenth amendment must always have some positive law content — usually state law — was entirely sound. But it was one thing to hold that a property interest did not exist aside from some state positive law which created it, and quite another to hold that the right to life or to liberty was equally dependent on state positive law. That mode of analysis would enable the state legislatures to deprive the life and liberty clauses of the fourteenth amendment of any real meaning. Justice Stevens saw in the Court’s mode of analysis the danger that positivism would degenerate into totalitarianism, and sounded the alarm in his dissent in Meachum v. Fano:
If man were a creature of the State, the analysis would be correct. But neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source.
I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.
427 U.S. at 230, 96 S.Ct. at 2541 (Stevens, J., dissenting).
Whether because of Justice Stevens’ warning against statism or for other reasons, the Court in 1977 reconsidered its drift in that direction. In Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977) it held that “[ajmong the historic liberties ... protected [by the due process clause] was a right *840to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” The holding in Ingraham v. Wright was a reiteration of the position taken by the Court prior to its 1976 flirtation with statism in matters of personal liberty. Indeed the court in Ingraham v. Wright relied on its holding in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) that the state violated a defendant’s right to personal security by subjecting him, involuntarily, to a stomach pump. 430 U.S. at 673-74, 97 S.Ct. at 1413-14. The holding in Ingraham v. Wright confirmed the soundness of this court’s opinion in Curtis v. Everette, 489 F.2d 516, 518 (3d Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974) that the fourteenth amendment was violated when prison guards permitted an assault on the plaintiff by a fellow prisoner, for our opinion also relied on Rochin v. California.
A year after Ingraham v. Wright, the Court in Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) reconfirmed that the fourteenth amendment, entirely aside from state positive law, recognized the personal liberty to be free from constraint, holding that despite the state’s parens patriae powers in providing care for persons unable to care for themselves, the state could not involuntarily commit those persons on proof of their condition no more substantial than a preponderance of the evidence.10
The right of personal security at issue in Ingraham v. Wright was that of a student who was at liberty except for the mild coercion of the state’s school attendance law. In Addington v. Texas the person alleged to be mentally ill was at liberty until the state attempted his involuntary confinement. Nevertheless the Court’s reliance in Ingraham v. Wright on Rochin v. California, which involved a pretrial detainee, suggested that it would not distinguish, for purposes of the existence of the right to personal security, between persons at liberty and persons confined. This was confirmed a year after Addington v. Texas when in Vitek v. Jones, 445 U.S. 480, 490-91, 100 S.Ct. 1254, 1262-63, 63 L.Ed.2d 552 (1980) the Court held that even a convicted prisoner had a federally protected liberty interest, entirely apart from state positive law, in freedom from confinement in a mental institution.
Still more recently in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) the Court strongly reiterated that all involuntarily committed persons, entirely aside from state positive law, retained a federally protected interest in personal safety. Id. at 315-16, 102 S.Ct. at 2458. The quotation in Judge Sloviter’s opinion from Justice Powell’s opinion of the Court in Youngberg v. Romeo establishes unequivocally that the right to be confined only in safe conditions applies equally to all persons whom the state commits involuntarily, regardless of the purpose of the confinement.
All the judges participating in this appeal, albeit with varying degrees of enthusiasm, join in rejecting New Jersey’s contention that Davidson had no constitutionally protected right to personal safety while he was confined.11 Convicted prisoners, pretrial detainees, and the civilly committed all have that same right.12
IV.
The Absence of a State of Mind Requirement in Section 1983
Section 5 of the fourteenth amendment authorizes Congress to enforce its provi*841sions by appropriate legislation. Congress might have left the enforcement of the amendment primarily to the Supreme Court exercising supervision over the courts of the states. Instead, even before its effective date, Congress passed for the first time a statute of general application implementing the first clause in article III section 2 of the Constitution, authorizing the lower federal courts to exercise jurisdiction in cases arising under the Constitution and laws of the United States.13 When, following ratification of the amendment, Congress reenacted parts of the earlier statute, it used the broadest conceivable language, providing that “any person who ... shall subject, or cause to be subjected, any person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress ____”14 This statute, codified at 42 U.S.C. § 1983, still contains the sweeping language of the 1871 Congress.
When the 1871 Congress acted, the federal courts had little prior experience with federal question jurisdiction. The only previous jurisdictional statute of any moment in that respect was that chartering the Second Bank of the United States, which had afforded the Marshall Court its sole opportunity to construe the first clause in article III section 2. In Osborn v. United States Bank, 22 U.S. (9 Wheat.) 326, 6 L.Ed. 204 (1824) the Court held that Congress could confer on the lower federal courts federal question subject matter jurisdiction over any case in which was presented a question over which, had the case arisen in a state court, the Supreme Court would have potential appellate jurisdiction. It is reasonable to conclude that the sweeping language of the 1871 Civil Rights Act was intended to implement article III section 2, with respect to matters covered by the fourteenth amendment, to the full extent permitted under Osborn. Moreover, at the time of its enactment, federal equity practice was nationally uniform. On the law side, however, the federal courts under the Process Act15 borrowed the practice, as of the date of each state’s admission to the Union, of the states in which they sat. Thus one may be reasonably certain that in 1871 when Congress used the language “any action at law” it was fully cognizant of the fact that government agents had always been subject to the full range of common law remedies, many of which had no state of mind requirement, and that in the future, persons acting under color of state law would be subject to that same full range of common law remedies in the federal courts.
The Civil Rights Act of 1871 was, of course, anesthetized by the Court following the constitutional settlement of 1877.16 So deep was the sleep that a leading expert on practice in the federal courts writing in 1925 did not even include that Act in a listing of statutes providing exceptions to the jurisdictional amount requirement. See, Dobie, Jurisdictional Amount in the United States District Court, 38 Harv.L. Rev. 733, 738 (1925). The Act remained dormant until the late 1930’s. When it reemerged, the initial cases which placed any significance on the Act involved intentional action of a rather extreme sort.17 Because the early cases after the statute was rediscovered involved conduct that was *842not only intentional, but also specifically endorsed by state law, it was not until some years after the Federal Rules of Civil Procedure had supplanted common law remedies in the federal courts that the Supreme Court addressed the question whether, for the first time, a state of mind requirement should be read into the sweeping language of section 1983. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) the Court, for the first time after the post-reconstruction era, examined with any degree of consciousness the congressional intention reflected in the 1871 Act.18 Even Justice Frankfurter, who never fully reconciled himself to the Warren Court’s disassociation from the constitutional settlement of 1877, acknowledged that a specific intent requirement could not be read into section 1 of the Act, although the criminal counterpart originating in the same statute had been so construed. In Monroe, he wrote:
If the courts are to enforce § [1983], it is an unhappy form of judicial disapproval to surround it with doctrines which partially and unequally obstruct its operation. Specific intent in the context of the section would cause such embarrassment without countervailing justification. Petitioners’ allegations that respondents in fact did the acts which constituted violations of constitutional rights are sufficient.
365 U.S. at 207-08, 81 S.Ct. at 495 (Frankfurter, J., dissenting in part). Justice Frankfurter’s dissent focused, instead, on the absence of a constitutional violation because the actions of the defendants were illegal under state law.19 On that issue Justice Frankfurter stood alone. The Court was unanimously of the view, however, that no specific intent requirement could legitimately be written into section 1983 by judicial usurpation of the legislative function. If section 1983 was to reemerge from the closet in which it had been hidden by the post-reconstruction Court, it would reemerge as written. In the words of Justice Douglas, 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, 81 S.Ct. at 484.
The decision in Monroe v. Pape was not greeted with universal enthusiasm, even among article III judges.20 Despite Monroe v. Pape’s clarity on the state of mind issue, litigants frequently attempted to convince lower federal courts to judicially write a state of mind requirement into section 1983. One such attempt was made in this court when the defendants urged that the fact that a policeman defendant was motivated by personal animosity against the plaintiff sufficed to place his acts outside the scope of section 1983. That contention was rejected in Basista v. Weir, 340 F.2d 74 (3d Cir.1965) by Judge Biggs, who unlike many of his contemporaries and successors, was an enthusiastic protector of civil rights.21 His opinion stated:
While a specific intent to deprive a person of his constitutional rights is required under criminal sections of the Civ*843il Rights Acts, 18 U.S.C. §§ 241, 242, neither specific intent nor purpose to deprive an individual of his civil rights is a prerequisite to civil liability under the civil provisions of the Civil Rights Act.
Id. at 81. That, of course, was precisely what the Supreme Court had held unanimously in Monroe v. Pape, a case on which Judge Biggs expressly relied. Id. Monroe v. Pape and Basista v. Weir required no more than proof of action under color of state authority, which is in this case conceded. Unlike Judge Sloviter’s sophistical effort to find, in the several opinions written in Monroe v. Pape, something which is not there, Judge Biggs’ treatment of that case is consistent with the position taken by all the Justices on the critical issue in that case — namely that only the state could violate the Constitution. The language of Justice Harlan quoted by Judge Sloviter, p. 823, refers to that issue — the identity of the actor — not to any state of mijnd requirement.
Because not all lower court federal judges shared Judge Biggs’ admirable enthusiasm for holding accountable all persons acting under color of state authority, it was not surprising that efforts to have the Court read a state of mind requirement into section 1983 would persist. Those efforts, as Judge Sloviter acknowledges, produced “no discernable thread.” P. 823. Resistance to accountability by state officials in federal courts for their actions taken under color of state law did not slacken as the personnel of the Supreme Court changed during the 1970’s, and several times it appeared that the Monroe v. Pape interpretation of section 1983 might be reconsidered. As Judge Sloviter acknowledges, the Court in Procunier v. Navarette, 434 U.S. 555, 559 n. 6, 98 S.Ct. 855, 858 n. 6, 55 L.Ed.2d 24 (1978) granted certiorari to consider whether a state of mind requirement should be read into that section, but the case was decided on an unrelated ground.
When the Fifth Circuit Court of Appeals held in McCollan v. Tate, 575 F.2d 509 (5th Cir.1978) that a plaintiff should have a claim presented to the jury that the defendant sheriff had failed to take reasonable care to prevent his deputies from violating plaintiff’s constitutional rights, the Court once again considered the section 1983 state of mind question. Justice Rehnquist wrote for the Court:
Having been around this track once before in Procunier, supra, we have come to the conclusion that 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. In any event, before the relationship between the defendant’s state of mind and his liability under § 1983 can be meaningfully explored, it is necessary to isolate the precise constitutional violation with which he is charged.
Baker v. McCollan, 443 U.S. 137, 139-40, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). The deprivation alleged in Baker v. McCollan was the detention, pursuant to a valid arrest warrant, of the wrong party. The Court held that the plaintiff had shown no invasion of any federally protected right, and thus once again declined to overrule the unanimous holding in Monroe v. Pape that section 1983 includes no state of mind requirement. Justice Rehnquist’s admonition, however, that the answer to the question whether failure to exercise reasonable care to avoid or prevent constitutional violations “may not be susceptible of a uniform answer across the entire spectrum of constitutional violations” shows his awareness of the need to focus upon the nature of the interest being invaded — either liberty or property — and upon the extent to which actions by the state may have made it impossible for the victim to have avoided the invasion by action of his own.
It should be noted that in Baker v. McCollan the Court decided a constitutional law issue, holding that the fourth amendment was not violated by an inadvertent arrest and detention of the wrong defend*844ant pursuant to a valid warrant. A construction of section 1983 which would have read into it a state of mind requirement higher than the departure from reasonable care would have permitted the Court to avoid the decisions of that constitutional law question. See Hagans v. Lavine, 415 U.S. 528, 537-43, 94 S.Ct. 1372, 1379-82, 39 L.Ed.2d 577 (1974). The Court could have held that assuming, arguendo, a fourth amendment violation had occurred as a result of the failure to take reasonable care to avoid it, Congress intended that its post-occurrence vindication could only take place in a state court, with review in the Supreme Court under 28 U.S.C. § 1257. Thus in reaching the constitutional issue the Baker v. McCollan Court then made a conscious albeit implicit decision that it would not reconsider the Monroe v. Pape interpretation of section 1983.
Judge Sloviter states that Justice Rehnquist's distinction between the state of mind required by section 1983 and the state of mind required by the Constitution is “enigmatic.” P. 822, n. 3. There is no enigma. Justice Rehnquist was well aware, just as the members of this court are well aware, that some violations of the Constitution plainly do require a state of mind — infliction of punishment in violation of the eighth amendment, for example. Others plainly do not — violations of the establishment clause of the first amendment, for example. Thus the description of Baker v. McCollan as “enigmatic” is no more than an unwarranted effort to disregard the Supreme Court’s unadorned refusal in that case to overrule the interpretation of section 1983 which in Monroe v. Pape it had unanimously adopted.
Shortly after Baker v. McCollan was decided the Supreme Court in Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) considered for the first time a provision of the California Tort Claims Act, on which New Jersey's Act is modeled. The section in question, the equivalent of which is N.J.Stat.Ann. § 59:5-2 (West 1982), provided that “[n]either a public entity nor a public employee is liable for: (a) Any injury resulting from determining whether to parole or release a prisoner ____” Cal. Gov’t Code Ann. § 845.8(a) (West 1982). Plaintiffs sought recovery in a California state court for the death of a fifteen year old who had been murdered by a sex offender released on parole five months earlier, allegedly as a result of the negligence of the parole officials. The plaintiffs asserted a claim under section 1983, which the California court rejected. On appeal, the Supreme Court affirmed. Justice Stevens wrote:
Although the decision to release Thomas from prison was action by the State, the action of Thomas five months later cannot be fairly characterized as state action. Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a “duty” to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), we hold that taking these particular allegations as true, appellees did not “deprive” appellants’ decedent of life within the meaning of the Fourteenth Amendment.
Her life was taken by the parolee five months after his release. He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 U.S. 232 [94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)]. Further, the parole board was not aware that appellants’ decedent, as distinguished from the public at large, faced any special danger. We need not and do not decide that a parole officer could never be deemed to “deprive” someone of life by action taken in connection with the release of a prisoner on parole. But we do hold that at least under the particular circumstances of this parole decision, appellants’ decedent’s death is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law. Although a § 1983 claim has been described as “a species of tort liability,” Imbler v. Pachtman, 424 U.S. 409, 417 [96 S.Ct. 984, 988, 47 *845L.Ed.2d 128 (1976) ], it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.
444 U.S. at 284-85, 100 S.Ct. at 559 (footnotes omitted).
The unanimous decision in Martinez v. California is significant for this case in two respects. First, it confirms that neither California nor New Jersey can confer an immunity which must be recognized in a section 1983 action, even in a state court. The Court recognizes explicitly that because there is concurrent jurisdiction over section 1983 actions, state courts must entertain them.22 444 U.S. at 283 n. 7, 100 S.Ct. at 558 n. 7, citing Testa v. Katt, 330 U.S. 386, 391, 67 S.Ct. 810, 813, 91 L.Ed. 967 (1947). Second, the opinion, in determining the liability of the parole officers for their own actions as distinct from the actions of the murderer, makes a conventional tort law proximate cause analysis. There is no suggestion in Martinez v. California that had proximate cause standards been satisfied, the state employees would have been excused from the duty to take reasonable care to prevent foreseeable harm. Indeed the clear implication of Justice Stevens’ opinion is that had proximate cause been established between the parole board’s negligence and the death of the victim, section 1983 would provide a remedy.
The issue of a state of mind requirement in section 1983 was next addressed in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Unlike the federally protected liberty interest in personal security involved in Baker v. McCollan and in this case, Parratt involved a state law property interest. The plaintiff, an inmate of the Nebraska Penal and Correctional Complex, proceeding pro se convinced the district court that state officers had negligently deprived him of property. The Court of Appeals for the Eighth Circuit affirmed without opinion. 620 F.2d 307 (1980). Nebraska petitioned for certiorari, and the first question presented in its petition is “[wjhether simple negligence, if proven, may form the basis of a judgment under 42 U.S.C. § 1983.” Petition for cert. granted, 449 U.S. 917, 101 S.Ct. 315, 66 L.Ed.2d 145, filed May 1, 1980 at 2. Nebraska’s brief on the merits identifies the same issue as a question presented: “[wjhether simple negligence, if proven, may form the basis of a judgment under 42 U.S.C. § 1983.” Brief for Petitioner at i, Parratt. Point II of Nebraska’s brief on the merits is captioned “The Issue of Negligence,” id. at 14 and discussion of that issue occupies fifteen pages in a thirty page brief. The American Civil Liberties Union and a variety of amici were permitted to file extensive briefs as amicus curiae on the issue of whether section 1983 requires a particular state of mind. Since Nebraska sought certiorari in a case in which the respondent was a pro se litigant, in which it had to appoint counsel, and in which the Court of Appeals wrote no opinion, it is clear beyond question that the Court deliberately selected Parratt for review in order to consider once again whether section 1983 should for the first time be held to embody a state of mind requirement. Justice Rehnquist confirmed that this was the case, observing that the Court had
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 [98 S.Ct. 855, 55 L.Ed.2d 24] (1978), and Baker v. McCollan, 443 U.S. 137 [99 S.Ct. 2689, 61 L.Ed.2d 433] (1979), [and] in each of those cases found it unnecessary to decide the issue.
451 U.S. at 532, 101 S.Ct. at 1911. The quoted statement that in Baker v. McCollan it was not necessary to decide the issue is hardly consistent with Hagans v. Lavine. Be that as it may, in Parratt the *846Court’s holding is explicit. Reviewing the legislative history of section 1983 and its prior interpretation by the Court, Justice Rehnquist wrote:
Nothing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan 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 ____ 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. This Court recognized as much in Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961) ....
451 U.S. at 534, 101 S.Ct. at 1912 (footnote omitted). Justice Rehnquist then approvingly quoted Justice Douglas’ statement in Monroe v. Pape that section 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Parratt, 451 U.S. at 535, 101 S.Ct. at 1912-1913, quoting 365 U.S. at 187, 81 S.Ct. at 484. He then concluded:
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.
Parratt, 451 U.S. at 535, 101 S.Ct. at 1913.
Thus unlike the judges who join in Judge Sloviter’s opinion, Justice Rehnquist and the Justices joining in his Parratt v. Taylor opinion found nothing “enigmatic” in his Baker v. McCollan opinion. He read it, as I do, to be consistent with the unanimous interpretation of section 1983 in Monroe v. Pape. Moreover he read Monroe v. Pape in exactly the same way Judge Biggs read it for this court in Basista v. Weir, supra.
Only after deciding the issue of statutory interpretation tendered by Nebraska did the Parratt Court turn to the alternative constitutional ground of decision: that for the negligent destruction of personal property a post-event tort remedy satisfies due process. That course was consistent with the Court’s settled practice. Had section 1983 been interpreted as requiring a particular state of mind, rather than conduct objectively unreasonable in light of the risk of harm, the Court could, and would, have reversed on statutory rather than constitutional grounds. See, Hagans v. Lavine, supra. Thus the Court’s discussion of the statutory issue on which it granted certiorari is unquestionably and unequivocally a holding that a failure to take reasonable care to avoid an invasion of a constitutionally protected interest is actionable under section 1983. The Court continued:
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.
451 U.S. at 536-37, 101 S.Ct. at 1913 (footnote omitted) (emphasis added). It was not a deprivation without due process of law, however, but only because Nebraska, unlike New Jersey, preserved the historical liabilities of state employees for their failure to take reasonable care of property which because of their positions came into their possession.
Before a case presenting a Parratt v. Taylor issue reached this court the Supreme Court in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) afforded further guidance with respect to the relationship between state positive law and the due pro*847cess clause of the fourteenth amendment. Logan involved a state-created expectation that physically handicapped persons would not be discriminated against in private employment. In that case state officials in an administrative agency neglected to convene a hearing on the charge of discrimination within the time provided in the antidiscrimination statute, and the Illinois Supreme Court rejected Logan’s contention that this neglect violated due process. The Supreme Court, distinguishing Parratt v. Taylor, held that the negligent failure to schedule a hearing deprived Logan of a state-created interest without due process. Justice Blackmun wrote:
Despite appellee Zimmerman Brush Company’s arguments, the recent decision in Parratt v. Taylor, 451 U.S. 527 [101 S.Ct. 1908, 68 L.Ed.2d 420] (1981) is not to the contrary. There, a state employee negligently lost a prisoner’s hobby kit; while the Court concluded that the prisoner had suffered a deprivation of property within the meaning of the Fourteenth Amendment, it held that all the process due was provided by the State’s tort claims procedure.
455 U.S. at 435, 102 S.Ct. at 1157 (emphasis supplied). Thus the opinion of the Court in Logan confirms what is plain in Parratt: a negligent deprivation of property by a state officer is a deprivation of property within the meaning of the fourteenth amendment.23 The Logan Court’s treatment of Ingraham v. Wright is also significant. Justice Blackmun wrote:
In Ingraham v. Wright, 430 U.S. 651 [97 S.Ct. 1401, 51 L.Ed.2d 711] (1977), the Court concluded that state tort remedies provided adequate process for students subjected to corporal punishment in school. In doing so, however, the Court emphasized that the state scheme “preserved what ‘has always been the law of the land,’” id., at 679 [97 S.Ct. at 1416], quoting United States v. Barnett, 376 U.S. 681, 692 [84 S.Ct. 984, 990, 12 L.Ed.2d 23] (1964), and that adding additional safeguards would be unduly burdensome. 430 U.S., at 680-682 [97 S.Ct., at 1417-1418]. Here, neither of those rationales is available. Terminating potentially meritorious claims in a random manner is hardly a practice in line with our common-law traditions.
455 U.S. at 436 n. 10, 102 S.Ct. at 1158 n. 10 (emphasis supplied).
Justice Blackmun’s reference to preservation of what has always been the law of the land is significant, because until the New Jersey legislature decreed otherwise, it had always been the law of the land that custodians of incarcerated persons had a duty to take reasonable care to prevent third parties from inflicting harm on their charges. The law of the land in that respect is reflected in the rule announced in Restatement (Second) Torts, § 320 (1965):
One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or had reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control.
Id. Before New Jersey joined California in relieving public employees of their historically recognized duties under the law of the land, the rule announced in Restatement (Second) Torts, § 320 (1965) was the law of that state. Harris v. State, 61 N.J. 585, 297 A.2d 561 (1972).24 The rule in Logan *848states plainly that the decision in Ingraham v. Wright would have been otherwise if Florida in that case had attempted to relieve school officials of the duty of care imposed by the common law.
After Logan v. Zimmerman Brush Co. was decided a case presenting operative facts similar to those in Parratt v. Taylor was filed in the District of New Jersey. Charles Holman, a prisoner serving a life sentence had attempted to replevy personal property, or to recover its value, in a New Jersey state court.25 Without considering any section 1983 claim the state court, relying on N.J.Stat.Ann. 59:5-3 (West 1982) dismissed.26 The prisoner then commenced a section 1983 action in the federal court, and moved for partial summary judgment challenging the constitutionality of section 59:5-3. Judge Debevoise, in a carefully reasoned opinion which relied on Parratt and Logan, granted a partial summary judgment, holding that as applied to Holman, section 59:5-3 was unconstitutional, in that it deprived Holman of important interests in property without due process.
The trial court certified the case for interlocutory review pursuant to 28 U.S.C. § 1292(b) (1982), and this court, after careful consideration of essentially the same contentions made by New Jersey in the instant appeal, affirmed. Judge Hunter, who today mysteriously joins in Judge Sloviter’s opinion, wrote:
Reading Parratt and Logan together, it is plain that while Parratt may relegate a prisoner to his state tort remedies when such remedies are available, Logan provides the framework for analyzing the constitutional adequacy of state pro-
eedural limitations on those remedies. Therefore the principles of Logan are applicable in cases where it is claimed that the State refuses to make available to a claimant the established state procedures otherwise available for redress of deprivations of property.
Holman v. Hilton, 712 F.2d 854, 858 (3d Cir.1983). Judge Hunter then proceeded to analyze the effect of N.J.Stat.Ann. 59:5-3 on Holman, concluding that while that section of the Tort Claims Act only postponed a lawsuit, tolling the statute of limitations in the meantime, its effect on a prisoner serving a life or long-term sentence was no different, practically, than had the remedy been totally eliminated. 712 F.2d at 859. Since this was so, Holman could bring a section 1983 action for the negligent loss of his property.
The opinions in Holman v. Hilton are honest treatments of the Supreme Court case law dealing with the question whether section 1983 includes a state of mind requirement, and they should control the outcome of this case. Judge Sloviter’s treatment of the Holman precedent is discussed, infra.
After our decision in Holman, and after the decision of the trial court in this case the Supreme Court in Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) confirmed that it meant just what it had said in Parratt v. Taylor and Logan v. Zimmerman Brush Co. In Smith v. Wade, which also involved a section 1983 suit against prison officials for failing to prevent fellow prisoners from harming an inmate, a jury awarded both compensatory *849and punitive damages. Because the case had been tried as a violation of the eighth amendment, the court’s charge to the jury required a finding of gross negligence. On certiorari the defendants conceded liability for compensatory damages, but contended that punitive damages should not have been awarded absent a finding of intentional misconduct. In light of the concession on liability for compensatory damages the Supreme Court had no occasion to consider whether a gross negligence charge was required in every section 1983 action. Reviewing the case law, however, the Court concluded that at common law a finding of “recklessness, serious indifference to or disregard for the rights of others, or even gross negligence” permitted an award of punitive damages. 461 U.S. at 47-48, 103 S.Ct. at 1636. Justice Brennan continued:
The remaining question is whether the policies and purposes of § 1983 itself require a departure from the rules of tort common law. As a general matter, we discern no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action.
Id. at 49, 103 S.Ct. at 1636. Thus the Court stated unequivocally that section 1983 permitted all the remedies recognized by the common law of torts. One of those remedies is the recovery of damages for the failure of a custodian to take reasonable care to prevent third parties from inflicting harm on those in their custody.27 In light of Smith v. Wade, an intermediate appellate court is not free to read into section 1983 a higher standard for tort liability than the common law has historically recognized.
Even while this appeal was pending the Supreme Court reconfirmed that the key factor in Parratt v. Taylor was the availability of a state common law tort remedy, following a negligent deprivation of property. Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Indeed Chief Justice Burger stated explicitly that Parratt v. Taylor “held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if an adequate postdeprivation state remedy exists.” — U.S. at —, 104 S.Ct. at 3196. In Hudson the same rule was applied to intentional deprivations occurring in violations of established state procedures. But the case makes clear that both negligent and intentional deprivations are remediable under section 1983 when, as here, the state has eliminated post-deprivation remedies.
In view of the unbroken line of authorities from Monroe v. Pape in 1961 through Hudson v. Palmer in 1984 the majority’s effort to read into section 1983 a state of mind requirement is utterly untenable.
V.
The Majority’s Unprincipled Treatment of Precedent
Judge Sloviter’s treatment of precedents that should be regarded as controlling is deeply disturbing; the treatment of Holman v. Hilton is particularly so. That decision is mentioned in three contexts.
At one point the majority opinion states that section 1983 “plays an effective role ... in providing a federal forum to challenge an established state procedure that infringes upon an individual’s liberty or property interests, such as ... the New Jersey statute prohibiting prisoners from bringing tort actions against public entities or employees while confined struck down in Holman v. Hilton, 712 F.2d 854 (3d Cir.983).” Supra at 829-830. Why, one must ask, should section 1983 play a less effective role in providing a forum to challenge the far more drastic prohibitions in N.J. Stat.Ann. §§ 59:2-4, 59:5-4, 59:6-2, 59:6-7 *850and 59:5-2(b)(4)? An answer to that obvious question is attempted:
In the first place, plaintiff here, unlike the plaintiff in Holman v. Hilton, 712 F.2d 854 (3d Cir.1983), has not challenged the constitutionality of the statute. Plaintiffs claim, instead, is only for money damages from the defendants for the injuries inflicted by the assault.
Supra at 831. That dissembling description of Davidson’s pro se pleading — a complaint comprised of a printed form furnished by the district court in which Davidson, following instructions, filled in the blanks — is an outrageous violation of the standards announced in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) for measuring the sufficiency of a pro se litigant’s pleading. It disregards, moreover, the concluding prayer in the complaint for “[a]ny other relief equitable and just that the Court deems just and appropriate.” App. Da 4. Had counsel been appointed in the district court there might be some justification for distinguishing Holman v. Hilton by insisting that Davidson had failed to plead his legal theories with sufficient specificity. In fact, however, Davidson proceeded pro se throughout the trial, and counsel was appointed for him only in this court. Plainly Judge Brotman who conducted the trial assumed throughout that Davidson was pursuing relief under section 1983 because the Tort Claims Act prohibited him from recovering from Cannon and James under state law. That is the same issue decided in Holman v. Hilton, and discussed by the Supreme Court in Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980), a case which Judge Brotman cites in his opinion. App. Da 19. The suggestion that the interrelationship between the Tort Claims Act and section 1983 was not presented, and litigated, is an insult to Judge Brotman’s considerable intelligence. His own words, quoted in the margin, remove any doubt about the issues which were presented to him, and which he tried.28
*851The heart of the majority opinion, however, is its final “distinction” of Holman v. Hilton. Judge Sloviter writes:
In the second place, a claim for procedural due process must be predicated on deprivation of a substantive right or interest created by the Constitution, a statute or other entitlement____ Since we have rejected Davidson’s claim that his substantive right under the Fourteenth Amendment was deprived by defendants’ negligence, and there has been no claim of a statutory or other entitlement, there is nothing to trigger an inquiry into what process is due.
Supra at 831. There are two ways in which these obscurant sentences may be read. One possible reading is that Holman v. Hilton survives, with respect to property interests created by state positive law, but does not apply to loss of life or invasion of bodily security. The other is that the failure to take reasonable care to prevent a loss of property does not amount to a deprivation of property.
If, as I suspect, the first reading is what is intended, then the majority opinion is an example of perverse obverse Lochnerism. The fundamental error of Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905) was the Court’s attempt to remove contract, which was always a matter of positive property law, from the reach of law by converting contract into a liberty interest. The object, and temporary result, was to preserve the status quo between employers and employees. What the majority is doing is worse. Rather than elevating property interests to the status of liberty interests, it denegrates the latter by holding that they shall receive less protection than has been afforded the former.
If, on the other hand, what is intended is that the negligent destruction of property, absent a state post-destruction remedy, is not a deprivation within the fourteenth amendment, then Holman v. Hilton, announced only 14 months ago, has proved to be “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987 (1944) (Roberts, J., dissenting). Of course the Court in banc is free to play fast and loose with its own precedents, however unwise that course may be.
The court in banc is not similarly free, however, to play fast and loose with the Supreme Court’s precedents. The cases discussed in Part IV above cannot, consistently with our position as an intermediate court, be given the short shrift treatment reflected in Judge Sloviter’s opinion. Moreover cases on which that opinion relies, not discussed in Part IV, do not support the reversal of Davidson’s judgment. Several of those cases require special mention.
*852Judge Sloviter quotes Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) in support of the proposition that a state may relieve its agents of the duty to take reasonable care to prevent harm to persons entrusted to their custody. Supra at 824. Like so much else in her opinion the quotation, taken out of context, is used for a misleading purpose. Unlike the states of New Jersey and California, Texas did not relieve its agents rendering medical care to prisoners of the duty of reasonable care. A post-treatment negligence action was available in the Texas courts. 429 U.S. at 107, 97 S.Ct. at 292 (referring to Tex.Civ.Code Ann. art. 6252-19 (Vernon 1970 & Supp.1984)). An examination of the petition for certiorari discloses quite clearly that it did not present any issue relevant to this case. The petitioners construed the pro se complaint as one presenting an eighth amendment claim, and none other. The response to the petition by court appointed counsel and the briefs filed by both sides all proceed on the same assumption. 429 U.S. at 101-02, 97 S.Ct. at 289-90. Nothing was decided in Estelle v. Gamble other than that the eighth amendment required a showing of more than negligence. That case cannot be treated as authority for state power to relieve custodians, or even physicians, of the duty to take reasonable care.
Judge Sloviter similarly attempts to wring from Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) support for the proposition that custodians may be relieved of the obligation to take reasonable care to prevent harm. Supra at 824. Once again a quotation, taken out of context, is used for a misleading purpose. Paul v. Davis holds that absent some expectation created by state law there is no substantive interest to be protected by the due process clause. That holding is in my view unfortunate, since it misses the point that human personality has a psychological as well as a physical component, either of which is susceptible to injury. That notwithstanding, the holding has no relevance to this case, for here the injury to Davidson was plainly physical. Moreover, this court holds unanimously that entirely aside from state positive law there is a liberty interest in personal security from physical injury. Thus Judge Sloviter’s reliance on Paul v. Davis in Part IV of her opinion is inconsistent with the analysis made in Part III, in which the entire court joins.
Judge Sloviter also opines that the court’s “holding avoids the anomalies that would result ... were a prisoner to be entitled under the Constitution to a higher standard of care than an involuntarily committed mental patient, see Youngberg v. Romeo, 457 U.S. 307 [102 S.Ct. 2452, 73 L.Ed.2d 28] (1982).” Supra at 831 n. 9. Plainly, then, the majority assumes that New Jersey can, as it has done, validly relieve custodians of the mentally ill and the mentally retarded of the duty to take reasonable care to prevent harm from befalling those unfortunates. Youngberg v. Romeo announced no such uncivilized doctrine. As Part III of the majority opinion concedes, Romeo recognizes a liberty interest in freedom from bodily harm. In determining the standard of care appropriate for the protection of that interest, the Supreme Court adopted the standard proposed by Chief Judge Seitz in this court: the exercise of accepted professional judgment. 457 U.S. at 321, 323, 102 S.Ct. at 2461, 2462. That standard is the standard of the common law. Moreover it is precisely the standard from which Cannon and James departed. They failed to discharge their duties as professional custodians of prisoners in accordance with the accepted standards of that calling. The trial court so found, and this court agrees, unanimously, that this finding is not clearly erroneous. Judge Sloviter’s treatment of Youngberg v. Romeo is nothing less than a backhanded rejection of the standard of care which it announced. This development bodes ill not only for prisoners but also for the involuntarily committed everywhere in this circuit.
Finally, Judge Sloviter’s oblique suggestion that the “conduct that shocks the conscience” language in Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) establishes the standard of *853liability for section 1983 cases, because “[t]he Court did not say whether anything less would suffice,” supra at 830, is irresponsible. That case was a direct criminal appeal involving the issue whether evidence obtained by use of a stomach pump could be admitted in a criminal trial. Justice Frankfurter wrote:
The faculties of the Due Process Clause may be indefinite and vague, but the mode of their ascertainment is not self-willed. In each case “due process of law” requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detatched consideration of conflicting claims, ... on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of change in a progressive society.
Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience.
Id. (citation omitted). The suggestion that the descriptive phrase in the last quoted sentence defined, for Justice Frankfurter, or any other Justice, the maximum content of the due process clause in a personal liberty context, is simply preposterous. Even if this untenable suggestion were to be adopted as the relevant standard, New Jersey’s statutory abrogation of the duty of custodians to take reasonable care to prevent harm from befalling those it has incarcerated may not shock the majority’s conscience, but it surely shocks mine.
VI.
The Absence of Caseload Benefits
Some of those joining in the majority opinion are engaged, one suspects, in a quixotical quest for devices which will make our burgeoning caseload disappear.29 The gross negligence standard which has been adopted by the majority as the due process minimum will afford no relief in this respect. The pleadings in this case illustrate the problem perfectly. The complaint was made on the district court’s printed form, tailored for prisoners’ use. In Part IV of the form, captioned “Statement of Claim” the pro se litigant is instructed:
State here as briefly as possible the facts of your case. Describe how each defendant is involved. Include also the names of other persons involved, dates and places. Do not give any legal arguments or cite any cases or statutes.
App. Da 3 (emphasis in original). The instructions are consistent with the pleading standards announced in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) and Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Davidson followed them, by simply stating what transpired. He did not mention any standard of care. The court could not on the basis of his statement of claim rule as a matter of law that he would be unable to establish gross negligence. Moreover even if the majority were to impose a requirement that those magic words be included, they would soon appear in every pro se or counseled complaint seeking money damages.
Moreover, even at trial the distinction between gross negligence and failure to take reasonable care under the circumstances is not one that is susceptible of application as a matter of law.
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.”
W. Prosser, Handbook of the Law of Torts, 182 (4th ed. 1971) (footnotes omitted). In every case the facts still will have to be *854developed, and the case will be rare, indeed, when a trial court will discern a line between “gross” and “mere” negligence clear enough to grant a summary judgment or to direct a verdict which would not otherwise have been granted.
VII.
The Necessity of a Remand
What I have said about the fact-sensitive distinction between the pejorative “gross” negligence and the equally pejorative “mere” negligence suggests that even on the majority’s analysis the proper result should be a remand. Obviously Davidson, a pro se litigant, was unaware of the metaphysical distinction which the majority has invented. Moreover Judge Brotman, because he relied on the plain statement in Parratt v. Taylor that negligence sufficed, did not consider whether the conduct of Cannon and James amounted to gross negligence. The case was tried non-jury. The trial court heard the testimony and saw the demeanor of the witnesses. At the very least that court should be afforded an opportunity to reappraise the evidence in light of the new standard which the majority announces.
VIII.
Conclusion
The holding in this case, that custodians of the involuntarily committed may be relieved of the duty to take reasonable care to prevent harm to persons committed to their charge who are deprived of the ability to resort to self help, is inconsistent with settled Supreme Court case law, inhumane, and indecent. The judgment in Davidson’s favor should be affirmed. At the very least the case should be remanded so that the trial court may reconsider the evidence in light of the new standard which the majority announces. I dissent.
. United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1882) (Federal antilynching law unconstitutional); J. Chadbourn, Lynching and the Law (1933); W. White, Rope & Faggot (1929); National Association for the Advancement of Colored People, Thirty Years of Lynching in the United States 1889-1918 (1919); J. Cutler, Lynch-Law; An Investigation of the History of Lynching in the United States (1969).
. But see Union County Jail Inmates v. DiBuono, 713 F.2d 984, 718 F.2d 1247 (3d Cir.1983) (pretrial detainees and sentenced inmates may be confined in conditions comparing unfavorably with those permitted by federal laws regulating the confinement of animals).
. 1961 Cal.Stat., c. 1404, p. 3209, codified at Cal.Civ.Code § 22.3, Cal.Gov’t Code § 9611 (West 1982) (repealed 1979).
. Cf. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (Government entity does not enjoy immunities of its agents).
. Cal.Gov't Code § 810 et seq. (West 1982 & Supp.1984).
. The New Jersey courts have repeatedly acknowledged the California provenience of the New Jersey Tort Claims Act. See, e.g., Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 449 A.2d 472 (1982); Rivera v. Gerner, 89 N.J. 526, 446 A.2d 508 (1982); Brown v. Brown, 86 N.J. 565, 432 A.2d 493 (1981); Costa v. Josey, 83 N.J. 49, 415 A.2d 337 (1980); Kolitch v. Lindedahl, 193 N.J.Super. 540, 475 A.2d 86 (App.Div.1984); Speziale v. Newark Housing Authority, 193 N.J.Super. 413, 474 A.2d 1085 (App.Div.1984).
. The Act makes a distinction between retrospective remedies at law and prospective remedies in equity. N.J.Stat.Ann. § 59:1-4 (West 1982). Obviously a prospective remedy would be of no use to Davidson. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
. Cf. Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Rennie v. Klein, 720 F.2d 266 (3d Cir.1983).
. Other immunity provisions in the Tort Claims Act, not significant for the duty of care owed to persons involuntarily confined, relate to 42 U.S.C. § 1983 in other respects. These include NJ.Stat.Ann. §§ 59:2-5 and 59:3-6 (West 1982) (no liability for an injury caused by issuance, denial, suspension or revocation of, or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization); id. §§ 59:2-8 and 59:3-13 (no liability for injuries caused by the termination or reduction of benefits under a public assistance program); id. § 59:3-2 (no liability for an injury resulting from exercise of judgment or discretion); id. § 59:3-3 (no liability for good faith action in execution or enforcement of any law); id. § 59:3-4 (no liability for injury caused by action under apparent authority of a law that is unconstitutional, invalid or inapplicable); id. § 59:3-5 (no liability for any injury caused by failure to enforce any law); id. § 59:3-8 (no liability for injury caused by initiation or prosecution of any judicial or administrative proceeding); id. § 59:3-9 (no liability for entry upon any property); id. § 59:3-10 (no liability for misrepresentation made in scope of employment); id. § 59:5-1 (no liability for failure to provide facilities in a prison or other correction facility); id. § 59:5-4 (no liability for failure to provide police protection).
. Addington v. Texas reconfirmed the authority of O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); and Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).
. Judge Garth’s separate opinion is too sophisticated for my comprehension, but since he joins in Judge Sloviter’s opinion, I assume that he approves the holding in Part III thereof that Davidson has a constitutionally protected right to personal safety while confined.
. In this respect New Jersey is consistent. It denies any duty to protect the safety of any of them.
. Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27.
. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13.
. Act of May 8, 1792, ch. 36, § 2, 7 Stat. 275, 276. See, Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L.Ed. 253 (1825) (changes in state procedural law inapplicable in actions at law in a federal court). Cf. Act of June 1, 1872, ch. 255, 17 Stat. 196.
. The anesthesia was administered principally in Carter v. Greenhow, 114 U.S. 317, 5 S.Ct. 928, 29 L.Ed. 202 (1884), Holt v. Indiana Manufacturing Co., 176 U.S. 68, 20 S.Ct. 272, 44 L.Ed. 374 (1900) and Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737 (1904).
. Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) is the leading example.
. The examination was less thorough then it should have been. Compare, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) with Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
. There are striking similarities between Judge Sloviter's opinion and Justice Frankfurter’s Monroe v. Pape dissent. Judge Sloviter does not go so far, however, as to suggest as Justice Frankfurter urged that Barney v. City of New York, 193 U.S. 430, 24 S.Ct. 502, 48 L.Ed. 737 (1904) which had been cast in doubt by Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510 (1913), and overruled in United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), should be reestablished. This Court is still unanimously of the view that the legality or illegality of a defendant’s action under state law is not determinative for purposes of section 1983 or the fourteenth amendment.
. See, e.g., Aldisert, Judicial Expansion of Federal Jurisdiction: A Federal Judge's Thoughts on Section 1983, Comity and the Federal Caseload, 1973 Law and Social Order 557 (1973).
. See, e.g., Picking v. Pennsylvania R. Co., 151 F.2d 240 (3d Cir.1945); Hague v. C.I.O., 101 F.2d 774 (3d Cir.), aff'd in part and modified in part, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).
. Thus despite any possible implication to the contrary in Judge Garth’s opinion, the outcome of this case must be the same whether Davidson proceeded in a federal or a state forum. The state could eliminate causes of action based on state law, but must entertain section 1983 causes of action.
. Judge Sloviter mentions Logan v. Zimmerman Brush Co., p. 830, but her selective quotation unfairly ignores those parts of Justice Blackmun’s opinion in which he discusses issues relevant to this case.
. The rule is not a recent innovation. Both the black-letter and Comments in Restatement (Second) Torts § 320 (1965) are taken verbatim from Restatement (First) Torts § 320 (1934). Comment (a) provides that "[t]he rule stated in *848this Section is applicable to a sheriff or peace officer, a jailer or warden of a penal institution, officials in charge of a state asylum or hospital for the criminally insane, or to teachers or other persons in charge of a public school. It is also applicable to persons conducting a private hospital or asylum, a private school, and to lessees of convict labor.” See, e.g., Necolayff v. Genesee Hospital, 270 A.D. 648 (N.Y.App.Div.), 61 N.Y.S.2d 832, 836 (1946), affirmed, 296 N.Y. 936, 73 N.E.2d 117 (1947) (Section 320 duty of care applies to hospital patients); Daniels v. Andersen, 195 Neb. 95, 237 N.W.2d 397, 400 (1975) (Section 320 duty of care obliges jailer to take reasonable care to prevent beating by a fellow inmate).
. Holman v. Hilton, 542 F.Supp. 913 (D.C.N.J.1982).
. That section of the Tort Claims Act prohibits suits by prisoners against any public entity or public employee while the prisoner is confined. That provision is applicable to Davidson, but the provisions referred to in the text would prohibit a suit for the injuries he suffered in this case even after his release.
. Even the dissenters in Smith v. Wade did not urge that for compensatory damages a different state of mind than failure to take reasonable care was required. They only urged that more than gross negligence or reckless disregard should be required for the award of punitive damages. Id. 461 U.S. at 56, 103 S.Ct. at 1640 (Rehnquist, J., dissenting); id. at 94, 103 S.Ct. at 1658 (O’Connor, J., dissenting).
. Judge Brotman wrote:
The first step is to inquire whether the assault here implicates a "liberty interest” protected by the due process clause. Freedom from physical attack and injury undeniably falls within the compass of constitutionally protected liberty. To be free of personal violence is the basic core of liberty. "To be free from, and to obtain judicial relief for, unjustified intrusions on personal security ... [is one of] the historic liberties” protected at common law and by the due process clause. Ingraham v. Wright, 430 U.S. 651, 672-73 [97 S.Ct. 1401, 1413, 51 L.Ed.2d 711] (1977). See Youngberg v. Romeo, [457 U.S. 307], 102 S.Ct. 2452 [73 L.Ed.2d 28] (1982). Even while incarcerated, plaintiff enjoys a constitutionally protected interest in conditions of reasonable care and safety.
Defendants emphasize that plaintiff seeks to recover damages for a single attack. They refer to recent statements by the court of appeals that “[t]he right to protection is not actuated by an isolated mishap, or called into question by each bruise that a patient [here, prisoner] may suffer,” and that “no one is guaranteed an injury-proof life.” Romeo v. Youngberg, 644 F.2d 147, 162 (3d Cir.1980), vacated and remanded, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). But as defendants have also pointed out, the critical aspect ■is not the weight of the interest, but its nature. Board of Regents v. Roth, 408 U.S. 564, 570-71 [92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548] (1972). Thus the first analytical step is whether security from assault is within the ambit of "liberty.” Whether the assault is aggravated or repeated does not alter its nature, but simply its weight.
Furthermore, the instant case is not about a "bruise” or an inadvertent accident. It does not involve some "de minimis” personal injury, but a vicious and traumatic attack inflicting severe wounds. The defendants were personally apprised of the anticipated assault, and knowing of McMillian’s violent character, did nothing to prevent its occurrence. Had reasonable precautions been taken, even as simple as issuing a warning to McMillian, the evidence suggests that plaintiff would not have been injured. Defendants knew that McMillian represented a "special danger” to plaintiff. Cf. Martinez v. California, 444 U.S. 277, 285 [100 S.Ct. 553, 559, 62 L.Ed.2d 481] (1980).
Defendants argue that plaintiff did not enjoy a "liberty interest” in his personal security because defendants did not intentionally permit the assault, but were merely negligent about his safety. This argument confuses the notion of liberty interest with the notion of deprivation. State of mind has no relevance for purposes of identifying what is a liberty interest and what is not.
Rather, we believe defendants’ argument is that state of mind is significant for purposes *851of determining whether the defendant deprived plaintiff of his liberty. Defendants suggest that unless the actions of the state officials were intentional, reckless, or malicious, there has been no "deprivation” of rights. But as we have discussed in our prior opinion, the Supreme Court has held that a state official’s negligence is sufficient to constitute a "deprivation” for due process purposes. Parratt v. Taylor, 451 U.S. 527 [101 S.Ct. 1908, 68 L.Ed.2d 420] (1981). We do not agree with defendants that Parratt’s holding regarding negligent deprivation is irrelevant to the instant case on the ground that Parratt involved a property rather than a liberty interest. We do not believe these categories are so rigid. The distinction between property and liberty interests does not alter the relevant reasoning, which is that § 1983 does not include a requirement that the official’s act be intentional. Defendants assert that we should impose a "deliberate indifference” standard, borrowed from the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97 [97 S.Ct. 285, 50 L.Ed.2d 251] (1976). This standard was rejected as inappropriate under due process analysis in Youngberg v. Romeo, [457 U.S. 307], 102 S.Ct. at 2456 n. 11.
Defendants Cannon and James, acting under authority of state law, negligently deprived plaintiff of his liberty interest in remaining free from physical assault. This brings us to the second step of due process analysis, to inquire whether the state has provided the "process” which is due under the circumstances. As we discussed in our prior opinion, New Jersey provides plaintiff no process whatsoever by which to pursue a remedy against the state or state officials for injuries inflicted by another prisoner. N.J. Stat.Ann. 59:5-2 (West 1982).
App. Da 18-Da 20 (footnote omitted).
. See note 20 supra.