concurring in part and dissenting in part.
If we are to deny qualified immunity to these prison officials based on their violation, not of the Constitution directly, but of state administrative regulations, we must find that, in 1985, all reasonable prison officials would have known that they could be personally liable for money damages if they violated a prison regulation of their own state. McIntosh v. Weinberger, 810 F.2d 1411, 1433 n. 9 (8th Cir.1987); Dominique v. Telb, 831 F.2d 673, 676 (6th Cir. 1987).
I do not think that the state of the case law permits that conclusion. The best case for that proposition is Davis v. Scherer, 468 U.S. 183,104 S.Ct. 3012, 82 L,Ed.2d 139 (1984). Although that case is not a model of clarity, footnote 12 (468 U.S. at 194, 104 S.Ct. at 3019) while clearly discounting mere violation of a regulation as the basis for any kind of liability, seems to say that a section 1983 suit sometimes can be based on a violation of a regulation that furnishes the gravamen of the action sued on, though at other times it speaks of liability “only to the extent that there is a clear violation of the statutory rights_” (emphasis added). Although the violation of the regulation led directly to and authorized the strip search that is the injury complained of, I do not think all reasonable officials would understand from Davis that they were now liable in damages for every violation of regulations. Similarly, Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), which holds that a prison regulation can be the basis for a liberty interest protected by section 1983, was not a money damages case and does not allude to that possibility.
I therefore respectfully dissent from that portion of the opinion that refuses to allow qualified immunity from suit based on violation of the prison regulation.