(dissenting). This appeal presents an ironic paradox. Wisconsin Adm. Code ch. DOC 303 was adopted to comply with the mandate of the United States Supreme Court in Wolff v. McDonnell, 418 U.S. 539 (1974). The Wolff Court made clear that disciplinary proceedings to which inmates are subjected must meet constitutional standards regarding due process: "There is no iron curtain drawn between the Constitution and the prisons of this country." Id. at 555-56. If the Department of Health and Social Services had not adopted chapter DOC 303, Casteel would have stated a claim against the respondent corrections officials for violating his fourteenth amendment right to procedural due process. However, under our decision, because chapter DOC 303 exists, respondents may flout the disciplinary procedures provided thereunder without fear of personal liability. This result defies common sense and I dissent from it.
The court's error results from a misapplication of Parratt v. Taylor, 451 U.S. 527 (1981), overruled, Daniels v. Williams, 474 U.S. 327 (1986) (due process clause not implicated by merely negligent acts by state officials), and Hudson v. Palmer, 468 U.S. 517 (1984). In these cases, the Court held that inmates had no right to predeprivation notice and an opportunity to be *451heard because there was no way the state could have anticipated the "random and unauthorized" taking of their property. Where that is the situation, an inmate whose property is taken in an "unauthorized action" by the state1 must depend on his or her common law tort remedy against the correctional official responsible for the taking.
In Zinermon v. Burch, 494 U.S. 113 (1990), the Court made clear that when a state official abuses his or her authority, and as a consequence violates a person's right to procedural due process, that official may be subject to liability under 42 U.S.C. § 1983. In Zinermon, hospital officials had state authority to deprive persons of liberty. Thus, "the Constitution imposed on them the State's concomitant duty to see that no deprivation occurs without adequate procedural protections." Zinermon, 494 U.S. at 135. The Court said that the hospital officials' conduct was not "unauthorized" in the sense the term was used in Parratt and Hudson. Id. at 138. The Court said: "The deprivation here is 'unauthorized' only in the sense that it was not an act sanctioned by state law, but, instead, was a 'depriv[ation] of constitutional rights... by an official's abuse of his position.'" Id. (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961), overruled on other grounds, Monell v. Department of Social Services, 436 U.S. 658 (1978)).
The proper result in this case can be easily understood if one concentrates on the Constitution and not the administrative code. After all, chapter DOC 303 simply expresses the commands of the Constitution. If a prison official ignores chapter DOC 303, he or she does not escape personal liability under sec. 1983. It *452must be remembered that sec. 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom or usage . . . subjects, or causes to be subjected, any . . . person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . .." (Emphasis added.) A corrections official who deprives an inmate of the process due under Wolff deprives the inmate of a right secured by the constitution, irrespective of chapter DOC 303. It defies common sense to conclude that a corrections official can gain immunity from liability under sec. 1983 by ignoring the very laws enacted to insure inmates' due process rights.
Respondents argue that in any event, Casteel does not state a claim cognizable under sec. 1983 because he has an adequate postdeprivation remedy in certiorari to review the corrections officials' violations of chapter DOC 303. Respondents' argument fails for several reasons. First, an adequate postdeprivation remedy satisfies the fourteenth amendment only if a predeprivation remedy is not practicable. In Zinermon, the court said:
This is where the Parratt rule comes into play. Parratt and Hudson represent a special case of the general Mathews v. Eldridge analysis, in which postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide.
494 U.S. at 128. Mathews v. Eldridge, 424 U.S. 319, 355 (1976), prescribes a weighing process which determines what procedural protections the Constitution requires in a particular case. See Lewis v. Young, 162 Wis. 2d 574, 583, 470 N.W.2d 328, 332 (Ct. App. 1991) *453(Sundby, J., dissenting). We need not undertake a Mathews balancing in this case because the United States Supreme Court has already done the balancing in Wolff. In response to that balancing, the Court prescribed what process is due an inmate in a disciplinary proceeding. That process includes notice and a predeprivation hearing. Therefore, a postdeprivation remedy does not satisfy the command of the fourteenth amendment.
Even if a postdeprivation remedy was all the process due Casteel, I would nonetheless conclude that certiorari is not an adequate remedy. The defects of certiorari as a remedy for deprivation of constitutional rights are manifold. First, issuance of the writ is discretionary with the court, unless certiorari is prescribed by statute as the method of appeal.2 State ex rel. Park Plaza Shopping Ctr., Inc. v. O'Malley, 59 Wis. 2d 217, 219, 207 N.W.2d 622, 623 (1973). Before a court will grant a writ of certiorari, it must appear that not only has some error been committed, but that the error has caused substantial harm. State ex rel. Hippier v. City of Baraboo, 47 Wis. 2d 603, 609, 178 N.W.2d 1, 6 (1970). The argument may well be made that, in the absence of some special damage, mere vindication of a constitutional right does not constitute "substantial harm." Second, certiorari has a very limited period of limitation of six months. Firemen's Annuity and Benefit Fund v. Krueger, 24 Wis. 2d 200, 205, 128 N.W.2d 670, 673 (1964). The United States Supreme Court could well *454conclude that this period of limitation unconstitutionally circumscribes sec. 1983. Third, court review under common law certiorari is limited to a review of matters appearing in the petition for the writ and the return. Berschens v. Town of Prairie du Sac, 76 Wis. 2d 115, 118-19, 250 N.W.2d 369, 372 (1977). Many civil rights actions are complicated and require development of a full record. Fourth, the scope of review on certiorari is quite limited. Coleman v. Percy, 96 Wis. 2d 578, 588-89, 292 N.W.2d 615, 621 (1980). Fifth, the remedies available on certiorari are limited. Damages may not be awarded. Coleman v. Percy, 86 Wis. 2d 336, 341, 272 N.W.2d 118, 121 (Ct. App. 1978), aff'd, 96 Wis. 2d 578, 292 N.W.2d 615 (1980). "No court could make whole a damaged party to a contract through certiorari." Id. Likewise, no court could make whole through certiorari a party who has been damaged by an abridgement of his or her constitutional rights. A party whose right to procedural due process has been violated is entitled to at least nominal damages. Carey v. Piphus, 435 U.S. 247, 266 (1978). Prospective relief is not available on certiorari review. Finally, attorney fees are not available on certiorari. The availability of attorney fees may act as a deterrent to arbitrary and capricious action by public officials. Id. at 257 n.ll.
In Duenas v. Nagle, 765 F. Supp. 1393 (W.D. Wis. 1991), the United States District Court for the Western District of Wisconsin concluded that the state had provided the inmate with adequate postdeprivation remedies, through the inmate complaint review system, and through certiorari. 765 F. Supp. at 1400. The court concluded that although the prisoner could not recover damages, this did not make the remedy inadequate.
*455Courts in the Eastern District of Wisconsin have taken the opposite view. In Sturdevant v. Haferman, 798 F. Supp. 536 (E.D. Wis. 1992), the court concluded that even under a deferential standard, "the Wisconsin writ of certiorari is a constitutionally inadequate post-deprivation remedy for Sturdevant's alleged constitutional harm." 798 F. Supp. at 540. In Smith v. McCaughtry, 801 F. Supp. 239 (E.D. Wis. 1992), Judge Gordon concluded that even if the defendant's acts were "random and unauthorized," they could not escape liability under sec. 1983 because the claimed remedy of certiorari was inadequate. 801 F. Supp. at 243-44. Judge Gordon agreed with Judge Reynolds' determination in Sturdevant that the state law certio-rari remedy was inadequate under Parrott and Hudson. Id. at 244.
The conclusion of the court herein that certiorari is an adequate postdeprivation remedy is especially troubling for two additional reasons. First, the majority does not limit that holding to an alleged deprivation of procedural due process. Thus, the availability of cer-tiorari would preclude a sec. 1983 action brought by a plaintiff for a state official's violation of his or her rights under specific protections defined in the Bill of Rights. Also, the court's decision would extend to the substantive component of the due process clause which bars arbitrary, wrongful government actions "regardless of the fairness of the procedures used to implement them." Zinermon, 494 U.S. at 125.
Second, if certiorari is held to be an adequate postdeprivation remedy for a denial of procedural due process, a sec. 1983 action will never lie where public officials ignore or frustrate the use of prescribed notice and hearing procedures. Wherever there is no statutory provision for judicial review, the action of a public *456officer, board or commission may be reviewed by certiorari. State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 549-50, 185 N.W.2d 306, 311 (1971). Thus, public officials who fail to follow prescribed due process procedures may always shield themselves from personal liability for their lawless acts by pointing to the availability of certiorari. This subverts the constitutional command for predeprivation notice and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
For the foregoing reasons, I respectfully dissent.
I use "state" generically to include all governmental units, agencies and officials who act under color of law.
Section 227.03(4), Stats., provides that the provisions of chapter 227 relating to contested cases do not apply to prison disciplinary proceedings. However, the statute does not prescribe certiorari as the method of appeal from a prison disciplinary determination. Thus, the remedy is common law certiorari.