dissenting.
Thomas complains that he was deprived of his liberty interest in personal security without due process of law in violation of the due process clause of the Fourteenth Amendment. The gist of his complaint is that the defendants failed to take adequate steps to address his expressed concern regarding his personal safety while he was being detained prior to trial. Cf. Ingraham v. Wright, 430 U.S. 651, 672, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977). A violation of substantive rights under the due process clause requires a violation of one of the “specific protections defined in the Bill of Rights,” Daniels v. Williams, — U.S.-,-, 106 S.Ct. 662, 677, 88 L.Ed.-2d 662 (1986) (Stevens, J., concurring), or “conduct that shocks the conscience.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). No violation of specific Bill of Rights protections is at issue. Since I do not perceive that the complaint raises any questions as to whether defendants conduct was “shocking” nor does the trial record reflect any such theory, Thomas’s claim must be one of procedural due process. Cf. Davidson v. Cannon, — U.S.-,-, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). Thomas’s claim was submitted to the jury under a “gross negligence” or “egregious failure to protect” standard and thus survives Daniels and Davidson, which hold that the due process clause is not implicated by the mere negligence of an official which causes injury to life, liberty, or property. Daniels, — U.S. at -, 106 S.Ct. at 663; Davidson, — U.S. at---, 106 S.Ct. at 669-72.
Our Circuit has not directly addressed the issue of whether Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), applies to procedural due process claims based on deprivations of liberty as *311well as to those based on deprivations of property. In Parratt, the Supreme Court held that “takings of property without any predeprivation process” are permissible under the due process clause of the Fourteenth Amendment when the loss is the “result of a random and unauthorized act by a state employee” rather than “a result of some established state procedure.” 451 U.S. at 541, 101 S.Ct. at 1916. The Court noted that “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id. The Court found that the availability of a meaningful post-deprivation hearing satisfied the requirements of procedural due process because there were state remedies that could have fully compensated the plaintiff, even though those remedies may not have been as extensive as the remedies available under section 1983. Id. at 537-44, 101 S.Ct. at 1913-17.
In the present case, the conduct complained of by Thomas is not conduct that is pursuant to established state procedures; it is conduct that is clearly “random and unauthorized.” Parratt, 451 U.S. at 541, 101 S.Ct. at 1916; see Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982). As the Supreme Court made clear in Hudson v. Palmer, the “controlling inquiry” under Parratt “is solely whether the state is in a position to provide for predeprivation process.” 104 S.Ct. 3194, 3204 (1984). In my view, there is no logical reason to restrict the application of Parratt to property deprivations.
Since a state is in no better position to anticipate random or unauthorized deprivations of liberty than it is of property, I believe that the rationale of Parratt extends to cases of liberty deprivations. The decisions of the majority of other circuits that have considered this question support this conclusion. See Toney-El v. Franzen, 777 F.2d 1224, 1227-28 (7th Cir.1985) (“In section 1983 actions challenging the mistakes made by state employees rather than the state procedures by which these mistakes were made, Parratt requires a court ‘ “to consider the adequacy and availability of remedies under state law before concluding a deprivation of life, liberty, or property violates due process of law”____’ ”); Wilson v. Beebe, 770 F.2d 578, 584 (6th Cir. 1985) (en banc) (nothing in Parratt justifies different treatment of due process claims for deprivation of liberty); Daniels v. Williams, 748 F.2d 229, 232 (4th Cir.1984) (en banc) (deprivation of liberty not actionable under section 1983 because post-deprivation remedy available in state courts), aff'd on other grounds, — U.S.-, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); cf. Daniels, — U.S. at-& n. 1, 106 S.Ct. at 666 & n. 1 (Court need not decide whether state remedy is inadequate for deprivation of liberty interest because official’s conduct was merely negligent and therefore not actionable under § 1983); Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir.1985) (liberty deprivations require procedural safeguards “at least equal” to those necessary regarding deprivations of property; Parratt not applicable because deprivation not “random and unauthorized”); Mills v. Smith, 656 F.2d 337, 340 n. 2 (8th Cir.1981) (per curiam) (Parratt cited in deprivation of liberty case). But see Brewer v. Blackwell, 692 F.2d 387, 394-95 & 395 n. 11 (5th Cir.1982) (Parratt not applicable to deprivations of liberty). See also Haygood v. Younger, 769 F.2d 1350, 1356 (9th Cir.1985) (en banc) (Ninth Circuit “has not spoken with one voice on whether the taking of liberty demands inherently greater process than the taking of property”).
Seeing no principled basis for applying Parratt to property interests but not to liberty interests, I believe that to determine whether Thomas’s section 1983 claim is cognizable in federal court we must ascertain whether he has adequate post-deprivation remedies under state law. Cf. Hud*312son, 104 S.Ct. at 3204. Because this matter has not been addressed by the District Court, I would remand to the District Court with directions to determine whether Thomas has an adequate remedy under state law. If he does, I believe that he is barred from bringing his action in federal court because the deprivation of his liberty interest then would not have been without due process of law. An adequate state remedy being available, there would be no violation of procedural due process under the Fourteenth Amendment and no predicate act upon which Thomas could base his section 1983 claim. In that event, Thomas’s claim would have to be dismissed since under Parratt the federal courts would be without subject matter jurisdiction to hear it. The Parratt issue is a very significant one, and I believe our Court should take this occasion, while we are sitting en banc in a case that raises the issue, to address it. I would hold that Parratt applies to this case and that a remand is required.
Assuming arguendo that Parratt does not bar the prosecution of this case in federal court either because Parratt does not apply to deprivations of liberty interests or because Thomas does not have an adequate state remedy, I dissent from the Court’s decision with respect to Humphrey, and concur in the Court’s decision to affirm the judgment awarding actual and punitive damages against Booker and to reverse the judgment and award of attorneys’ fees against Lark.
The jury initially returned to the courtroom after its deliberations having awarded Thomas $5,000 actual damages and $25,-000 punitive damages on a verdict form designating defendant Booker and having left blank the two verdict forms designating Lark and Humphrey. After the magistrate discussed the situation off the record with the attorneys, the following exchange took place:
THE COURT: I can only say this, Miss MacMillan, and I’ll speak to you as the foreperson of the jury, it’s incomplete.
THE FOREPERSON: You’re right, we’re just realizing that sitting here. I’m sorry.
THE COURT: You want to take it back and finish it for me?
THE FOREPERSON: Yes, I sure will.
Trial Transcript at 80-81.
The jury retired and returned some eight minutes later having completed all three verdict forms. Thomas again was awarded $5,000 actual damages, but the actual damage award now had been apportioned by the jury among all three defendants— $3,000 against Booker, $1,000 against Lark, and $1,000 against Humphrey. Likewise, Thomas again was awarded $25,000 punitive damages — $10,000 against Booker, $5,000 against Lark, and $10,000 against Humphrey.
In setting aside the punitive damage awards against Lark and Humphrey, the trial court evaluated the unusual circumstances surrounding the final verdict returned by the jury, and found that it “could reasonably infer that the jury meant only to award damages against Booker and when told their verdict was incomplete, they simply redistributed their original award____” Thomas v. Booker, No. 80-1297C(2) (E.D.Mo. Oct. 14, 1983) (memorandum opinion of magistrate).
The first verdict form succinctly stated in its body “we find in favor of plaintiff George Thomas against defendant Thomas Booker,” and made no mention of defendants Lark and Humphrey. The trial court made the specific finding, noted above, that the jury intended only to award damages against Booker, not against Lark and Humphrey. The trial court made this finding based on its colloquy with the jury and upon its observations of the jury’s actions. The finding is indisputably a finding of fact and it is not clearly erroneous. See Anderson v. City of Bessemer City, — U.S. -, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). Because the jury reported its verdict and found only Booker liable, I believe it was plain error for the trial court to send the jury back for further deliberations against Lark and Humphrey. It seems *313clear to me that the jury’s subsequent verdict extending liability to Lark and Humphrey was prejudiced by the manner in which the trial court directed the jury to “take it back and finish it for me.” To a jury that already had rendered its verdict and thought it had completed its work, the trial court’s cryptic insistence that they return to the jury room for further deliberations could easily have been understood as a directive that, having found Booker liable, they also must find Lark and Humphrey liable.1
Lark escapes liability, despite the trial court’s error, because our Court now holds that the evidence was insufficient as to him. As to Humphrey, however, the Court has found the evidence of liability sufficient to make a submissible case. Although I do not disagree with that conclusion, it does seem to me that the sufficiency question goes Thomas’s way by only the slimmest of margins. In view of the problem of jury confusion resulting from the trial court’s error, I do not believe it can be said with any reasonable degree of confidence that the jury made an unprejudiced and clear-cut determination that the evidence concerning Humphrey, barely sufficient to make a submissible case under the “gross negligence” or “egregious failure to protect” standard, was to be taken as establishing his liability. That being so, it follows that today’s decision creates the substantial risk of a miscarriage of justice as to Humphrey. To avoid that substantial risk, I would affirm the judgment of the trial court setting aside the jury’s award of punitive damages against Humphrey, reverse the judgment of the trial court sustaining the jury’s award of actual damages against Humphrey, and remand the case for a new trial on Thomas’s claims against Humphrey for actual and punitive damages.
. Of course, a few words by the trial court to the jury, making it clear that their having found Booker liable did not require them to find Lark and Humphrey liable, and that they must consider the evidence and the instructions as to each of the latter two defendants individually, would have avoided the problem. The mistake was not in sending the jury back to finish their work, but in the manner in which this was done.