(dissenting). I agree with the majority opinion insofar as it holds that the petitioner has a constitutionally protected liberty interest in remaining in the general prison population, as well as in retention of his earned good-time credits. I dissent from the majority opinion because I conclude that the petitioner's claim that he was deprived of liberty without due process of law is cognizable under 42 U.S.C. sec. 1983.
As the majority opinion explains, not all deprivations of liberty violate the Fourteenth Amendment to the federal Constitution. A claim under sec. 1983 requires an allegation that state officials deprived the plaintiff of life, liberty or property without due process of law. .
*852This case appears to involve procedural rather than substantive due process. To determine whether a plaintiff alleges a procedural due process violation, courts use the two-part analytical framework set forth in Parratt v. Taylor, 451 U.S. 527 (1981). First, such a violation has been alleged and sec. 1983 is available if the court determines that the challenged conduct is not "random and unauthorized," Parratt, 451 U.S. at 541, or is undertaken pursuant to an established state procedure. Second, even if the conduct is considered "random and unauthorized" and is not engaged in pursuant to established procedure, the challenged conduct nevertheless gives rise to a sec. 1983 claim if state law does not provide an adequate post-deprivation remedy. Parratt has been a very difficult decision to decipher and apply.1
The majority opinion holds that the challenged conduct in the case at bar is "random and unauthorized" and that common law certiorari review of the prison disciplinary board's decision constitutes an adequate remedy for the petitioner's allegedly wrongful disciplinary placement in segregation. I disagree bn both counts.
j.
Contrary to the impression that may be created by the majority's cut-and-dried approach to the first step in the Parratt analysis, this case raises squarely the central problem left in the wake of Zinermon v. Burch, 494 U.S. 113 (1990). When a state has established pre-deprivation procedures that on their face pass constitu*853tional muster, how are courts to classify allegations that the state officials responsible for implementing the procedures have failed to do so?
Perhaps, as the majority suggests (Majority opinion at 845-846), the challenged conduct is "random and unauthorized" by definition because the allegations indicate that officials violated established procedures. On the other hand, for other courts and commentators, it makes little sense to argue that the constitution requires the establishment of pre-deprivation procedures but does not require state officials to follow them.
Both of these viewpoints find support in Zinermon and in the cases that have interpreted it. Parratt and Zinermon evince the Court's apprehension of making the Fourteenth Amendment a "font of tort law"2 and the Justices' disagreements in sec. 1983 actions about such concerns as federalism, federal court burdens, overburdening officials, and trivializing constitutional rights.3
As Judge Easterbrook correctly observes in his concurrence in Easter House v. Felder, 910 F.2d 1387, 1408 (7th Cir. 1990), cert. denied, 498 U.S. 1067 (1991), the Supreme Court has been inconsistent in its approach to procedural due process violations and sec. 1983, and "hair-splitting" among the justices puts the federal courts of appeal and state high courts in a difficult position. Easter House, 910 F.2d 1387, 1408 (Easterbrook, J. concurring).
The Seventh Circuit, sitting en banc, divided over this question in Easter House v. Felder, 910 F.2d 1387, 1408 (7th Cir. 1990) (Easterbrook, J. concurring; Cudahy, Cummings and Posner, JJ. dissenting). Fed*854eral district courts in Wisconsin have reached opposite conclusions about sec. 1983 claims brought by prisoners challenging disciplinary proceedings. See Duenas v. Nagle, 765 F. Supp. 1393, 1398 (W.D. Wis. 1991) ("defendants' noncompliance with established state procedures can only be characterized as random and unauthorized conduct."); Smith v. McDaughtry, 801 F. Supp. 239, 242-43 (E.D. Wis. 1992) (alleged violations of Wisconsin prison disciplinary procedure not "random and unauthorized" conduct).
While a majority of the en banc Fifth Circuit apparently considers Zinermon a "wrinkle" on the Par-ratt doctrine,4 the dissenting judges characterized it as a "strong and sweeping addition" to the doctrine. Caine, 943 F.2d at 1418 (Williams, J. dissenting).5
My own reading of Zinermon suggests that the majority misses the point. Although it is true that Florida did not have pre-deprivation procedures to prevent the loss of liberty at issue in Zinermon, the state mental hospital employees nevertheless were alleged to have violated state law concerning the "voluntary" admission of an incompetent patient. The Court pointed out that "[i]t is immaterial whether the due process violation Burch alleges is best described as arising from petitioners' failure to comply with state procedures for admitting involuntary patients, or from the absence of a specific requirement that petitioners determine whether a patient is competent to consent to voluntary admission." Zinermon, 494 U.S. at 135-136. The officials had a duty "to ensure that the proper *855procedures were followed!.]" Zinermon, 494 U.S. at 137.
The case at bar is analogous to Zinermon in that the deprivation at issue "is 'unauthorized' only in the sense that it was not an act sanctioned by state law, but, was a deprivation of constitutional rights by an official's abuse of his position." Zinermon, 494 U.S. at 138 (citations omitted). It seems to me that Zinermon stands not only for the proposition that the Due Process Clause requires pre-deprivation procedures wherever feasible, but also for the proposition that officials are not shielded from sec. 1983 liability when they fail to implement such procedures. As in Zinermon, the state has delegated to the officials in this case the power and authority to effect the deprivation complained of and the concomitant duty to implement the procedural safeguards established by law.
I agree with Judge Easterbrook that Parratt and Zinermon, each of which produced several opinions in the United States Supreme Court, do not coexist easily. Judges around the country have differed in the interpretation and application of these c&ses. Recognizing the difficulty of reconciling the cases, I conclude that the challenged conduct in the case at bar is not "random and unauthorized."
HH H-H
If, however, the majority's narrow interpretation of Zinermon is correct and the alleged violations of the Department's regulations were "random and unauthorized," I must consider whether Wisconsin law provides an adequate remedy. The adequacy standard advances the goals of federalism. By providing adequate post-deprivation remedies, states can avoid federal disrup*856tion of their legal systems, and at the same time the purpose of sec. 1983 is accomplished.
The majority's perfunctory discussion fails to note, however, that federal jurisprudence offers few clues to solving this part of what one commentator refers to as the "Parratt puzzle."6 Courts disagree about what is required of a state remedy for it to be characterized as adequate.
The majority makes a novel attempt at a solution. The majority asserts that because the petitioner has allegedly suffered a "limited" deprivation of liberty by being placed in segregation for 368 days, he is not entitled to money damages no matter how egregiously his constitutional rights may have been violated. Thus cer-tiorari review provides an adequate state remedy. Majority opinion at 848. The majority cites no authority for forging a connection between the seriousness of the deprivation at issue and the adequacy of the post-deprivation remedy.7 It seems to me that these are two separate issues. Once we have determined that the petitioner alleges a deprivation of a liberty interest, we must determine whether common law certiorari can make him whole.
The courts have imbued the adequacy prong of the Parratt analysis with flexibility. The burden to prove inadequacy is on the plaintiff. Some form of redress under state law is generally available. When, however, the state offers relief too qualitatively different from that provided under sec. 1983 to grant complete *857redress, or when it is not clear that state law is able to compensate the plaintiff, courts struggle to assess the adequacy of the state law remedy. See David Zensky, Parratt v. Taylor, 16 N.Y.U. Rev. L. & Soc. Change 161, 184-85, 191, 195-201 (1987-88).
Congruence between remedies available under sec. 1983 and those available under state law is not required. Parratt, 451 U.S. at 544. Nonetheless, I conclude that Parratt requires a determination whether the available state process remedies the essential aspects of the interests at stake. Rutherford v. United States, 702 F.2d 580, 582-83 (5th Cir. 1983). In other words, there must be a congruity between the interests at issue and the remedies available. A court should consider the nature of the injury suffered and the interest involved to determine what forms of relief are essential for meaningful redress for a particular plaintiff.
On the few occasions when the federal circuit courts have explored the adequacy of state remedies at length, the cases turn on the capacity of state law to provide redress to the plaintiff for the particular deprivation claimed. As one court put it, "remedies not responsive to the range of intangible interests are not meaningful in the analysis of the adequacy of the process provided." Rutherford v. United States, 702 F.2d 580, 583 (5th Cir. 1983) (refund process not adequate remedy where plaintiff seeks compensation for IRS agent's harassment). See also Bumgarner v. Bloodworth, 738 F.2d 966, 968 (8th Cir. 1984) (state remedy deemed inadequate because it provided damages, not return of property with sentimental value); Parrett v. City of Connersville, 737 F.2d 690, 697 (7th Cir. 1984) (grievance procedure unable to award financial corn-*858pensation deemed inadequate to compensate police officer who was deprived of job without due process).8
The question is whether Wisconsin's common law certiorari review provides relief essential for redress of the petitioner's loss of liberty associated with his allegedly wrongful placement in disciplinary segregation. The petitioner argues that certiorari is inadequate for the reasons Judge Sundby set forth in his dissent in Casteel v. Kolb, 176 Wis. 2d 440, 450, 500 N.W.2d 400 (Ct. App. 1992) (Sundby, J. dissenting). Judge Sundby wrote that "the defects of certiorari as a remedy for deprivation of constitutional rights are manifold." Id. at 453. Certiorari has a period of limitation of just six months. Firemen's Annuity and Benefits Fund v. Krueger, 24 Wis. 2d 200, 205, 128 N.W.2d 670 (1964). The reviewing court may not consider matters outside the administrative record, Berschens v. Town of Prairie du Sac, 76 Wis. 2d 115, 118-19, 250 N.W.2d 369 (1977), a particularly serious limitation in the context of prison disciplinary hearings in which the hearings are not recorded and the record may be incomplete. The scope of certiorari review is limited. Coleman v. Percy, 96 Wis. 2d 578, 588-89, 292 N.W.2d 118, 121 (1980). Last, and most important, certiorari review does not permit the award of damages. Coleman v. Percy, 86 Wis. 2d 336, 341, 272 N.W.2d 118 (Ct. App. 1978), aff'd, 96 Wis. *8592d 578, 292 N.W.2d 615 (1980). Expungement of the petitioner's record is the redress that the petitioner can expect from the state law remedy.
The federal district courts in Wisconsin have divided over whether certiorari review constitutes an adequate remedy for violations such as those alleged here. The majority relies primarily on Duenas v. Nagle, 765 F. Supp. 1393, 1400 (W.D. Wis. 1991), in which the plaintiff did not raise the adequacy issue. Dueñas was followed in Scott v. McCaughtry, 810 F. Supp. 1015 (E.D. Wis. 1992). In Sturdevant v. Haferman, 798 F. Supp. 536, 540 (E.D. Wis. 1992), the court held that even under Easter House's extremely deferential standard of the adequacy of the state remedy, "the Wisconsin writ of certiorari is a constitutionally inadequate post-deprivation remedy," because it could not provide for redress of the inmate's allegedly wrongful placement in segregation. Sturdevant, 798 F. Supp. at 540-41. Thus, the court said, Wisconsin's certiorari review is "meaningless." Sturdevant, 798 F. Supp. at 541. Accord, Smith v. McCaughtry, 801 F. Supp. 239 (E.D. Wis. 1992) (adopting Sturdevant, not Dueñas).
The petitioner in this case claims that he was unconstitutionally deprived of 368 days of the relative freedom of being part of the general prison population. It is difficult to redress an intangible loss such as liberty. This is why the availability of money damages is crucial to an adequate remedy.
I disagree with the majority's determination that the petitioner's modicum of liberty is so valueless that a state remedy incapable of compensating the petitioner for its loss is "adequate" under the constitution. For the reasons set forth, I dissent.
See David Zensky, Parratt v. Taylor: Unauthorized Deprivations and the Content of An Adequate Remedy, 16 N.Y.U. Rev. L. & Soc. Change 161, 163 (1987-88).
Parratt, 451 U.S. at 549-50 (Powell, J. concurring).
See Sheldon H. Nahmod, 1 Civil Rights and Liberties Litigation 180-181 (3d ed. 1991).
Caine v. Hardy, 943 F.2d 1406, 1416 (5th Cir. 1991), cert. denied, —U.S.—, 112 S. Ct. 1474 (1992).
For discussion of other cases, see Sheldon H. Nahmod, 1 Civil Rights and Liberties Litigation 188-194 (3d ed. 1991).
Steven H. Steinglass, Section 1983 Litigation in State Courts (1993), 3-26.23.
The majority cites Dueñas v. Nagle, 765 F. Supp. 1393, 1400 (W.D. Wis. 1991) for authority on the adequacy of certio-rari review. The court dealt with this issue briefly, largely because the plaintiff did not argue it.
Other courts have deemed effective denial of access to court an inadequate state remedy. See, eg., Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991) (although state law allowed suit by inmates, because court never responded to plaintiff, state remedy was effectively denied to him); Holman v. Hilton, 712 F.2d 854 (3rd Cir. 1983) (statute enabling prisoners to recover for deprivations after their release deemed inadequate because not long term inmates had no opportunity to sue).