dissenting:
Raymond J. Stephany appeals from a summary judgment on his complaint seeking redress for having been confined, without notice of charges and without a pre or post confinement hearing, to administrative segregation while he was a prisoner at the Berks County Prison. The majority, conceding that for purposes of our review we must assume the truth of Stephany’s charge that he was subjected to administra*503tive segregation without notice or a hearing, without using Justice Rehnquist’s “bitter with the sweet” expression, adopts precisely the method of analysis with respect to positive law expectations that he has unsuccessfully urged on his colleagues for over thirteen years.
The Supreme Court has, since the early 1970’s, consistently held that when positive law, state or federal, creates a property or liberty expectation, the procedural due process protection to be afforded that expectation is determined by federal due process standards. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (hearing required before termination of welfare benefits); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (hearing required before driver license suspension). Cases such as Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) where the absence of an expectation grounded in state positive law is clear were relatively uncontroversial. In cases when state or federal law did suggest legitimate expectations, however, the imposition of federal procedural due process protections for legitimate expectations troubled some justices, notably Justice Rehnquist. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 1634, 40 L.Ed.2d 15 (1974), he unsuccessfully urged that “where the grant of a substantive right is inextricably intertwined with the limitations on the procedures employed in determining that right, a litigant [must] take the bitter with the sweet.” Id. at 153, 94 S.Ct. at 1644. That method of analysis would have collapsed the distinction between nonconstitutional positive law, liberty or property expectations, and procedural due process requirements, which the court so carefully made in Board of Regents v. Roth, 408 U.S. at 569, 92 S.Ct. at 2705; Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1973) and many similar cases.
Justice Rehnquist’s approach, however, never carried the day. It was rejected by a majority of the justices in Arnett v. Kennedy as inconsistent with Board of Regents v. Roth and Perry v. Sinderman. See 416 U.S. at 164, 94 S.Ct. at 1649 (Powell J., joined by Blackmun, J.); Id. at 171, 94 S.Ct. at 1652 (White, J.); Id. at 203, 94 S.Ct. at 1668 (Douglas, J.); Id. at 206, 94 S.Ct. at 1670 (Marshall, J. joined by Douglas and Brennan, JJ.). Thereafter, in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) the court articulated the federal balancing standard for determining what process is due, but still carefully separated that process determination from the quite different issue of whether the relevant positive law created legitimate expectations of treatment or benefit. An exemplary mode of analysis in which the positive law expectation and its attendant procedural content were determined independent of each other was made with respect to transfers from a prison to a hospital in Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 1263, 63 L.Ed.2d 552 (1980), a case in which the opinion of the Court noted that “minimum [procedural] requirements [are] a matter of federal law, they are not diminished by the fact that the State may have specified its own procedure that it may deem adequate for determining the preconditions to adverse official action.” Despite Mathews v. Eldridge and Vitek v. Jones, however, Justice Rehnquist’s Arnett v. Kennedy “bitter with the sweet” heresy continued to appear in arguments before the Supreme Court, and to be accepted by lower courts. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) the heresy was definitively rejected by eight justices. Referring to Vitek v. Jones, supra and Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) Justice White wrote:
In light of these holdings, it is settled that the “bitter with the sweet” approach misconceives the constitutional guarantee. If a clearer holding is needed, we provide it today. The point is straightforward: the Due Process Clause provides that certain substantive rights— life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause *504would be reduced to a mere tautology. Property cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process “is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Arnett v. Kennedy, supra [416 U.S.] at 167 [94 S.Ct. at 1650] (Powell, J., concurring in part and concurring in result in part); see id., at 185 [94 S.Ct. at 1659] (White, J., concurring in part and dissenting in part).
In short, once it is determined that the Due Process Clause applies, “the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 [92 S.Ct. 2593, 2600, 33 L.Ed.2d 484] (1972). The answer to that question is not to be found in the Ohio statute.
470 U.S. at 541, 105 S.Ct. at 1493. Only Justice Rehnquist dissented.
It is readily apparent that the majority, although it does not use Justice Rehnquist’s “bitter with the sweet expression,” adopts precisely the method of analysis with respect to positive law expectations that he has unsuccessfully urged on his colleagues for over thirteen years. Carefully piecing together, out of context, bits and pieces of the opinion of the court in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1982) the majority treats that case as if the minority position in Arnett v. Kennedy defining positive law entitlements in terms of the procedural requirements in that law, had actually prevailed.
The proper method of analysis is to look separately at the positive law entitlement, and then to compare the procedures provided by the lawmaking authority which created it with those required by federal procedural due process. When, as here, the lawmaking authority is a state agency, the initial task of determining if there is an expectation involves a determination of state law. In deciding whether state law creates a legitimate expectation of treatment or benefit, such as a liberty or property interest, a federal court must take a close look at the state agency’s definition of that interest. The purpose of that close look, however, is not to substitute federal substantive content, but only to prevent the avoidance or evasion of federal due process procedural rules by an unduly narrow interpretation of the interest. Separation of consideration of the substantive legal interest from the procedural protections to be afforded the holder of that interest thus recognizes the appropriate limits of state and federal law making competence. Indeed, Hewitt v. Helms recognizes as much by expressly rejecting the respondent’s contention that state procedural safeguards are alone enough to establish the existence of a substantive liberty interest. 459 U.S. at 471, 103 S.Ct. at 871.
As the majority opinion acknowledges, the defendants do not contend that the Prison Residents Handbook containing the rule on which Stephany relies was promulgated without legal authority. Supra at 500 n. 3. In this summary judgment posture, we must therefore assume that the handbook was intended to bind the defendant prison officials. Since we are dealing with the intention of the promulgating authorities, the starting point is the language of the rule, insofar as it deals substantively with administrative segregation. It reads:
D. Administrative Segregation:
Definition: The confinement of an inmate to his own or another cell pursuant to administrative review consistent with the policy outlined below.
1. Indications for Use:
Administrative segregation may be considered when:
(a) The security of the institution and/or the safety of any individual(s) is immediately threatened.
(b) Upon recommendation of a physician or mental health caseworker that, in his or her professional opinion, it would be in the best interests of said inmate(s) to be confined.
*505(c) When an inmate engages in behaviors that are immediately threatening to his/her life and/or health.
(d) When an inmate requests protective custody.
The plain meaning of the language is that the four listed instances are the only instances in which administrative segregation may even be considered. The majority reads the regulation as if it was written “Administrative segregation may be imposed for any reason whatsoever including but not limited to the following.” In order to effectively rewrite the regulation the majority does exactly what Justice Rehnquist proposed in Arnett v. Kennedy and what the other eight justices now prohibit; it looks to the procedural features of the rule as a means of narrowing its substance. If the rule had no procedural features it would still, under the method of analysis required by the Supreme Court’s procedural due process caselaw, trigger federal due process protections.
To test this hypothesis let us imagine the substantive language of the rule in another context If an employee of the Berks County Prison were charged with misconduct for imposing administrative segregation for reasons other than the four set forth in the Handbook, could he plausibly argue that the rule authorized him to do so? If he brought a section 1983 action seeking to restrain the prison authorities from disciplining him, would we accept as plausible the contention that the rule doesn’t fairly notify him that it confines his discretion? I submit that the answer to both the preceding questions is plainly, no. Clear to anyone who is willing to read ordinary language is that the legislative authority which promulgated the Berks County Prison rules intended to confine consideration of administrative segregation to the four designated instances. The rule is unequivocally a particularized standard or criterion to guide the prison officials’ decisionmaking on that subject matter. See Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 76 L.Ed.2d 813 (1983); Connecticut Board of Pardons v, Dumschat, 452 U.S. 468, 467, 101 S.Ct. 2460, 2465, 69 L.Ed.2d 158 (1981) (Brennan, J., concurring). The rule places substantive limitations on official discretion to confine prisoners to effective solitary confinement, creating a state law expectation which triggers due process scrutiny.
The substantive provisions which in Hewitt v. Helms were held by the Supreme Court to confine prison officials’ discretion regarding administrative detention provide an interesting comparison. Those regulations read:
An inmate who has allegedly committed a Class I Misconduct may be placed in Close or Maximum Administrative Custody upon approval of the officer in charge of the institution, not routinely but based upon his assessment of the situation and the need for control pending application of procedures under § 95.103 of this title.
37 Pa. Code § 95.104(b)(1) (1978).
An inmate may be temporarily confined to Close or Maximum Administrative Custody in an investigative status upon approval of the officer in charge of the institution where it has been determined that there is a threat of a serious disturbance, or a serious threat to the individual or others.
37 Pa.Code § 95.104(b)(3) (1978).
The Helms Court also noted an Administrative Directive of the State Bureau of Correction providing that when the State Police have been summoned to an institution:
Pending arrival of the State Police, the institutional representative shall:
1. Place all suspects and resident witnesses or complainants in such custody, protective or otherwise, as may be necessary to maintain security.
Pa.Admin.Dir. BC-ADM004, § IV B (1975). The substantive provision applicable to the Berks County Prison is actually clearer in confining the discretion of the prison officials in imposing administrative segregation than are the regulations which resulted in a finding of a protectible state law expectation in Hewitt v. Helms. True enough, as the majority opinion notes, Justice Rehnquist refers in Hewitt v. Helms to *506additional language in the regulation mandating notice and hearing. The most that can be read into the reference to mandatory procedures, however, is that they were relied upon as an aid to the discernment of the intention of the Pennsylvania promulgators of the regulations, which are considerably less explicit than the rule with which we deal. It cannot reasonably be maintained that in the absence of accompanying mandatory procedural rules Hewitt v. Helms requires that such plain language be disregarded. Such an interpretation would mean that the Hewitt v. Helms opinion adopted the Rehnquist Arnett v. Kennedy position. Justice White and Justice Powell both expressly disavowed that position, but nevertheless joined in the Hewitt v. Helms opinion, and cannot be deemed to have been converted to the Arnett v. Kennedy heresy. Moreover such an interpretation is inconsistent with the explicit rejection by eight justices of the Arnett v. Kennedy approach in Cleveland Board of Education v. Loudermill. Had Hewitt v. Helms been intended to mean what the majority reads into it, the case would have been mentioned explicitly in Loudermill and rejected.
One could, of course, justify the majority’s analysis by taking the position that the Supreme Court’s carefully crafted distinction between substantive entitlements and procedural safeguards is simply inapplicable to the prison situation. That may not be done, however, without disregarding the Supreme Court’s caselaw on the subject. Indeed, Hewitt v. Helms, on which the majority relies, is in this respect directly in point, for the court first made the determination that under Pennsylvania law there was an expectation with respect to administrative segregation, and only then proceeded to apply the balancing test required by Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); 459 U.S. at 472-73, 103 S.Ct. at 871-72.
The administrative segregation rule applicable to the Berks County Prison sets forth four particularized instances in which such segregation is permissible, and authorizes it in no other instances. The criteria are objective and the language is mandatory. Attributing to the drafters of the rule an intention to authorize administrative segregation in the totally unfettered discretion of prison officials is preposterous. Since the rule clearly limits that discretion, it creates a substantive state law expectation to which federal procedural due process standards apply. The summary judgment in this case was clear error, and should be reversed.