dissenting:
I respectfully dissent.
The majority invokes Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985), and Patterson v. Coughlin, 761 F.2d 886 (2d Cir.1985), cert. denied, 474 U.S. 1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986), as calling for reversal in this case. I disagree with that assessment.
Cleavinger concededly dealt with a factual setting that is comparable to this appeal, in that a prisoner was awarded damages for unlawful confinement pursuant to a disciplinary ruling that was reversed by an internal prison administrative appeal, and the defendants were the prison authorities who rendered the initial disciplinary ruling. The Court explicitly stated, however, that: “The sole question raised by petitioners in this Court is whether, as committee members, they were entitled to absolute immunity. Petitioners state that they have not challenged — although they do not concede — the ruling that they violated ‘clearly established rights’ of respondents.” 474 U.S. at 199 n. 5, 106 S.Ct. at 499 n. 5.
It is accordingly clear that the issue that must be decided on this appeal was never presented to, or considered by, the Court in Cleavinger. It is thus pure speculation to attribute to the Cleavinger Court, as the majority does, “apparent[ ] satisfaction] that qualified immunity provided the members of the discipline committee with sufficient protection from suit, regardless of the outcome of the administrative appeal.” That speculation does not invest Cleavinger with any precedential significance for the resolution of an issue that Cleavinger never addressed.
Similarly, Patterson should not be deemed to control decision here. As the majority recognizes, the prisoner in Patterson was unsuccessful in his administrative appeal, but prevailed in an independent proceeding in state court. We held that “an Article 78 proceeding or an action for damages in the Court of Claims” would not cure an administrative denial of due process, commenting that: “Once a cause of action for a constitutional violation accrues, nothing that the state does subsequently can cut off the § 1983 claim.” 761 F.2d at 893. Once again, Patterson simply does not address the question whether a “constitutional violation accrues” at all when there is an adverse disciplinary ruling that is reversed by the appellate operation of the prison’s internal administrative process.
I agree with the majority that both Russell v. Scully, 15 F.3d 219 (2d Cir.1994), and Young v. Hoffman, 970 F.2d 1154 (2d Cir.1992) (per curiam), cert. denied, — U.S. -, 114 S.Ct. 115, 126 L.Ed.2d 80 (1993), are distinguishable, because in Russell our holding was premised upon qualified immunity, see 15 F.3d at 223-24, and in Young the prisoner never commenced service of his disciplinary sentence. See 970 F.2d at 1155. I note, however, that the primary basis of the ruling in Young was the administrative correction of the violative disciplinary determination, while the fact that the prisoner never commenced his sentence was adverted to “[i]n addition” in a concluding paragraph. See id. at 1156. Nonetheless, we are presented with an issue as to which, in my view, there is no controlling Supreme Court or Second Circuit precedent.
*660I would resolve the issue by ruling that there is no procedural due process violation that gives rise to a § 1983 action when a prison disciplinary determination that violates constitutional standards is rectified by a timely internal administrative appeal. Bates’ appeal brief points out that in 1992 alone there were 20,097 Tier III hearings in the New York prison system, and 5,588 reviews resulting in 4,291 affirmances, 620 modifications, 590 reversals, and 87 decisions in nondisciplinary categories. It seems to me neither workable nor constitutionally required, in this context, to posit a § 1983 violation whenever there is any disciplinary detention, however limited, after a constitutionally infirm hearing that is subsequently rectified by an internal administrative appeal.
The constitutional rights of prison inmates are legitimately curtailed as a result of their convictions for criminal offenses. See Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). Especially given the difficulties inherent in prison administration, a rule that encourages careful oversight of disciplinary proceedings at the internal appellate level strikes the appropriate balance. See Young, 970 F.2d at 1156 (“We believe that, as a policy matter, th[e] possibility of cure through the administrative appeals process will encourage prison administrators to correct errors as an alternative to forcing inmates to seek relief in state or federal courts.”) (citing Harper v. Lee, 938 F.2d 104, 105 (8th Cir.1991) (per curiam)). If no appellate process is made available, or if its operation is inordinately delayed while a prisoner is confined as a result of a disciplinary determination, a § 1983 remedy would then be available.1 Cf. Wright v. Smith, 21 F.3d 496, 499-500 (2d Cir.1994) (affirming prisoner’s liberty interest in not being confined for extended period without a hearing); Lowrance v. Achtyl, 20 F.3d 529, 536 (2d Cir.1994) (due process requires opportunity to be heard within reasonable time after imposition of keeplock).
I would accordingly affirm the judgment of the district court.
. It could be argued that some portion of the 77-day sentence to punitive confinement that Walker served in this case, eleven days of which occurred after the administrative reversal of the determination which imposed that sentence, resulted from inordinate delay. It seems pointless to pursue the issue in this dissent, however, in view of the majority’s ruling that a § 1983 claim arises when a prisoner "commences to serve a punitive sentence” imposed as the result of a constitutionally defective hearing.