Clifton R. Tydings v. Department of Corrections, James River C.C. Superintendent A. Baskerville Major Melton

FAIRCHILD, Senior Circuit Judge,

concurring.

A state prison guard acts under color of state law. He is frequently called upon to deal with the possessions of a prisoner without a feasible opportunity for prior steps which would amount to due process. Where a prisoner claims his property rights have been thus impaired, but the state offers a procedure by which the state will compensate him for wrongful impairment, it may be reasonable to hold that the state’s retrospective procedure provides due process. The Supreme Court responded to that situation in Parratt. I have been very doubtful that a state’s provision of an ordinary civil judicial remedy against the individual alleged wrongdoer constitutes due process under Parratt. Nevertheless I am bound by Fourth Circuit precedent in Palm*13er v. Hudson, 697 F.2d 1220 (4th Cir.1983), cert. granted, - U.S. -, 103 S.Ct. 3535, 77 L.Ed.2d 1386 and Phelps v. Anderson, 700 F.2d 147 (4th Cir.1983).