ON PETITION FOR REHEARING
PER CURIAM.The petition for rehearing or rehearing en banc is denied.
Our opinion of ^August 2, 1973, does not require the state to provide or permit legal counsel to every state prisoner involved in a prison disciplinary hearing which may result in a serious penalty. Rather, we follow Gagnon, Warden v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in holding that counsel is required only in those cases where fundamental fairness cannot be achieved absent counsel.
Prison authorities are to be given an opportunity, on remand, to state whether they will provide or permit counsel in those eases which must be reheard for lack of procedural or substantive due process pursuant to this opinion. They will also be afforded an opportunity to give reasons for their decision in each case. Thereafter, the District Court may, on request, reexamine the state’s decision in the light of Scarpelli.