U.S. Supreme Court Parratt v. Taylor, 451
U.S. 527 (1981) Parratt v. Taylor No. 79-1734 Argued March 2, 1981 Decided May 18, 1981 451
U.S. 527 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus Respondent, an inmate of a Nebraska prison, ordered by mail
certain hobby materials. After being delivered to the prison, the
packages containing the materials were lost when the normal
procedure for receipt of mail packages was not followed. Respondent
brought an action in Federal District Court under 42 U.S.C. § 1983
against petitioner prison officials to recover the value of the
hobby materials, claiming that petitioners had negligently lost the
materials, and thereby deprived respondent of property without due
process of law in violation of the Fourteenth Amendment. The
District Court entered summary judgment for respondent, holding
that negligent actions by state officials can be a basis for an
action under § 1983, that petitioners were not immune from
liability, and that the deprivation of the hobby materials
implicated due process rights. The Court of Appeals affirmed. Held: Respondent has not stated a claim for relief
under 42 U.S.C. § 1983. Pp. 451 U. S.
531 -544.

															(a) In any § 1983 action, the initial inquiry must focus on
whether the two essential elements to a § 1983 action are present:
(1) whether the conduct complained of was committed by a person
acting under color of state law; and (2) whether this conduct
deprived a person of rights, privileges, or immunities secured by
the Constitution or laws of the United States. Pp. 451 U. S.
531 -535.

															(b) Although respondent has been deprived of property under
color of state law, he has not sufficiently alleged a violation of
the Due Process Clause of the Fourteenth Amendment. The deprivation
did not occur as the result of some established state procedure,
but as the result of the unauthorized failure of state agents to
follow established state procedure. Moreover, Nebraska has a tort
claims procedure which provides a remedy to persons who have
suffered a tortious loss at the hands of the State, but which
respondent did not use. Such procedure could have fully compensated
respondent for his property loss, and was sufficient to satisfy the
requirements of due process. Pp. 451 U. S.
535 -544.

															620 F.2d 307, reversed.

															REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, and STEVENS,
JJ., Page 451 U. S. 528 joined. STEWART, J., post, p. 451 U. S. 544 ,
WHITE, J., post, p. 451 U. S. 545 ,
and BLACKMUN, J., post, p. 451 U. S. 545 ,
filed concurring opinions. POWELL, J., filed an opinion concurring
in the result, post, p. 451 U. S. 546 .
MARSHALL, J., filed an opinion concurring in part and dissenting in
part., post p. 451 U. S.
554 . Page 451 U. S. 529 JUSTICE REHNQUIST delivered the opinion of the Court.

															The respondent is an inmate at the Nebraska Penal and
Correctional Complex who ordered by mail certain hobby materials
valued at $23.50. The hobby materials were lost, and respondent
brought suit under 42 U.S.C. § 1983 to recover their value. At
first blush, one might well inquire why respondent brought an
action in federal court to recover damages of such a small amount
for negligent loss of property, but because 28 U.S.C. § 1343, the
predicate for the jurisdiction of the United States District Court,
contains no minimum dollar limitation, he was authorized by
Congress to bring his action under that section if he met its
requirements and if he stated a claim for relief under 42 U.S.C. §
1983. Respondent claimed that his property was negligently lost by
prison officials in violation of his rights under the Fourteenth
Amendment to the United States Constitution. More specifically, he
claimed that he had been deprived of property without due process
of law. [ Footnote 1 ]

															The United States District Court for the District of Nebraska
entered summary judgment for respondent, and the United States
Court of Appeals for the Eighth Circuit affirmed Page 451 U. S. 530 in a per curiam order. 620 F.2d 307 (1980). We granted
certiorari. 449 U.S. 917 (1980). I The facts underlying this dispute are not seriously contested.
Respondent paid for the hobby materials he ordered with two drafts
drawn on his inmate account by prison officials. The packages
arrived at the complex and were signed for by two employees who
worked in the prison hobby center. One of the employees was a
civilian, and the other was an inmate. Respondent was in
segregation at the time, and was not permitted to have the hobby
materials. Normal prison procedures for the handling of mail
packages is that, upon arrival, they are either delivered to the
prisoner who signs a receipt for the package or the prisoner is
notified to pick up the package and to sign a receipt. No inmate
other than the one to whom the package is addressed is supposed to
sign for a package. After being released from segregation,
respondent contacted several prison officials regarding the
whereabouts of his packages. The officials were never able to
locate the packages or to determine what caused their
disappearance.

															In 1976, respondent commenced this action against the
petitioners, the Warden and Hobby Manager of the prison, in the
District Court seeking to recover the value of the hobby materials
which he claimed had been lost as a result of the petitioners'
negligence. Respondent alleged that petitioners' conduct deprived
him of property without due process of law in violation of the
Fourteenth Amendment of the United States Constitution. Respondent
chose to proceed in the United States District Court under 28
U.S.C. § 1343 and 42 U.S.C. § 1983, even though the State of
Nebraska had a tort claims procedure which provided a remedy to
persons who suffered tortious losses at the hands of the State.

															On October 25, 1978, the District Court granted respondent's Page 451 U. S. 531 motion for summary judgment. The District Court ruled that
negligent actions by state officials can be a basis for an action
under 42 U.S.C. § 1983; petitioners were not immune from damages
actions of this kind; and the deprivation of the hobby kit
"implicate[d] due process rights." The District Court
explained:

															"This is not a situation where prison officials confiscated
contraband. The negligence of the officials in failing to follow
their own policies concerning the distribution of mail resulted in
a loss of personal property for [respondent], which loss should not
go without redress."

															App. to Pet. for Cert. 9. II In the best of all possible worlds, the District Court's
above-quoted statement that respondent's loss should not go without
redress would be an admirable provision to be contained in a code
which governed the administration of justice in a civil law
jurisdiction. For better or for worse, however, our traditions
arise from the common law of case-by-case reasoning and the
establishment of precedent. In 49 of the 50 States, the common law
system, as modified by statute, constitutional amendment, or
judicial decision governs. Coexisting with the 50 States which make
it up, and supreme over them to the extent of its authority under
Art. IV of the Constitution, is the National Government. At an
early period in the history of this Nation, it was held that there
was no federal common law of crimes, United
States v. Hudson & Goodwin , 7 Cranch 32 (1812),
and, since Erie R. Co. v. Tompkins, 304 U. S.
64 (1938), there has been no general common law
applicable in federal courts merely by reason of diversity of
citizenship jurisdiction. Therefore, in order properly to decide
this case, we must deal not simply with a single, general
principle, however just that principle may be in the abstract, but
with the complex interplay of the Constitution, Page 451 U. S. 532 statutes, and the facts which form the basis for this
litigation.

															Because federal courts are courts of limited jurisdiction, we
must first look to the Act of Congress which confers jurisdiction
over claims such as respondent's on a United States district court.
Such enactment is found in 28 U.S.C. § 1343, which provides in
pertinent part:

															"The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any person:"

															" * * * *" "(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right,
privilege or immunity secured by the Constitution of the United
States or by any Act of Congress providing for equal rights of
citizens or of all persons within the jurisdiction of the United
States."

															The statute conferring jurisdiction is, in turn, closely related
to 42 U.S.C. § 1983, under which respondent brought this action.
Section 1983 provided in the year in question:

															"Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof 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."

															While we have twice granted certiorari in cases to decide
whether mere negligence will support a claim for relief under §
1983, see Procunier v. Navarette, 434 U.
S. 555 (1978), and Baker v. McCollan, 443 U. S. 137 (1979), we have in each of those cases found it unnecessary to
decide the issue. In Procunier, supra, we held that,
regardless of whether the Page 451 U. S. 533 § 1983 complaint framed in terms of negligence stated a claim
for relief, the defendants would clearly have been entitled to
qualified immunity, and therefore not liable for damages. In Baker, supra, we held that no deprivation of any rights,
privileges, or immunities secured by the Constitution and laws of
the United States had occurred, and therefore it was unnecessary to
decide whether mere negligence on the part of the actor would have
rendered him liable had there been such a deprivation. These two
decisions, however, have not aided the various Courts of Appeals
and District Courts in their struggle to determine the correct
manner in which to analyze claims, such as the present one, which
allege facts that are commonly thought to state a claim for a
common law tort normally dealt with by state courts, but instead
are couched in terms of a constitutional deprivation, and relief is
sought under § 1983. The diversity in approaches is legion. See, e.g., Williams v. Kelley, 624 F.2d 695 (CA5 1980); Beard v. Mitchell, 604 F.2d 485 (CA7 1979); Fulton
Market Cold Storage Co. v. Cullerton, 582 F.2d 1071 (CA7
1978); O'Grady v. Montpelier, 573 F.2d 747 (CA2 1978); Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975), modified
en banc, 545 F.2d 565 (1976); Hampton v. Holmesburg Prison
Officials, 546 F.2d 1077 (CA3 1976); Jones v.
Marshall, 528 F.2d 132 (CA2 1975); Diamond v.
Thompson, 523 F.2d 1201 (CA5 1975); Kimbrough v.
O'Neil, 523 F.2d 1057 (CA7 1975); Carter v. Estelle, 519 F.2d 1136 (CA5 1975); Pitts v. Griffin, 518 F.2d 72
(CA8 1975); Russell v. Bodner, 489 F.2d 280 (CA3 1973); Johnson v. Glick, 481 F.2d 1028 (CA2 1973); McCray v.
Maryland, 456 F.2d 1 (CA4 1972); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971); Madison v.
Manter, 441 F.2d 537 (CA1 1971); Howard v. Swenson, 426 F.2d 277 (CA8 1970); Whirl v. Kern, 407 F.2d 781 (CA5
1968); and Striker v. Pancher, 317 F.2d 780 (CA6 1963).
We, therefore, once more put our shoulder to the wheel, hoping to
be of greater assistance to Page 451 U. S. 534 courts confronting such a fact situation than it appears we have
been in the past.

															Nothing in the language of § 1983 or its legislative history
limits the statute solely to intentional deprivations of
constitutional rights. In Baker v. McCollan, supra, we
suggested that simply because a wrong was negligently, as opposed
to intentionally, committed did not foreclose the possibility that
such action could be brought under § 1983. We explained:

															"[T]he question whether an allegation of simple negligence is
sufficient to state a cause of action under § 1983 is more elusive
than it appears at first blush. It may well not be susceptible of a
uniform answer across the entire spectrum of conceivable
constitutional violations which might be the subject of a § 1983
action."

															443 U.S. at 443 U. S.
139 -140. Section 1983, unlike its criminal counterpart,
18 U.S.C. § 242, has never been found by this Court to contain a
state of mind requirement. [ Footnote 2 ] The Court recognized as much in Monroe v.
Pape, 365 U. S. 167 (1961), when we explained, after extensively reviewing the
legislative history of § 1983, that

															"[i]t is abundantly clear that one reason the legislation was
passed was to afford a federal right in federal courts because, by
reason of prejudice, passion, neglect, intolerance or otherwise,
state laws might not be enforced and the claims of citizens to the
enjoyment of rights, privileges and immunities guaranteed by the
Fourteenth Page 451 U. S. 535 Amendment might be denied by the state agencies." Id. at 365 U. S. 180 .
In distinguishing the criminal counterpart which had earlier been
at issue in Screws v. United States, 325 U. S.
91 (1945), the Monroe Court stated:

															"In the Screws case, we dealt with a statute that
imposed criminal penalties for acts 'willfully' done. We construed
that word in its setting to mean the doing of an act with 'a
specific intent to deprive a person of a federal right.' 325 U.S.
at 325 U. S. 103 . We do not
think that gloss should be put on [§ 1983] which we have here. The
word 'willfully' does not appear in [§ 1983]. Moreover, [§ 1983]
provides a civil remedy, while, in the Screws case, we
dealt with a criminal law challenged on the grounds of vagueness.
[Section 1983] should be read against the background of tort
liability that makes a man responsible for the natural consequences
of his actions."

															365 U.S. at 365 U. S.
187 .

															Both Baker v. McCollan and Monroe v. Pape suggest that § 1983 affords a "civil remedy" for deprivations of
federally protected rights caused by persons acting under color of
state law without any express requirement of a particular state of
mind. Accordingly, in any § 1983 action, the initial inquiry must
focus on whether the two essential elements to a § 1983 action are
present: (1) whether the conduct complained of was committed by a
person acting under color of state law; and (2) whether this
conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States. III Since this Court's decision in Monroe v. Pape, supra, it can no longer be questioned that the alleged conduct by the
petitioners in this case satisfies the "under color of state law"
requirement. Petitioners were, after all, state employees in Page 451 U. S. 536 positions of considerable authority. They do not seriously
contend otherwise. Our inquiry, therefore, must turn to the second
requirement -- whether respondent has been deprived of any right,
privilege, or immunity secured by the Constitution or laws of the
United States.

															The only deprivation respondent alleges in his complaint is
that

															"his rights under the Fourteenth Amendment of the Constitution
of the United States were violated. That he was deprived of his
property and Due Process of Law."

															App. 8. As such, respondent's claims differ from the claims
which were before us in Monroe v. Pape, supra, which
involved violations of the Fourth Amendment, and the claims
presented in Estelle v. Gamble, 429 U. S.
97 (1976), which involved alleged violations of the
Eighth Amendment. Both of these Amendments have been held
applicable to the States by virtue of the adoption of the
Fourteenth Amendment. See Mapp v. Ohio, 367 U.
S. 643 (1961); Robinson v. California, 370 U. S. 660 (1962). Respondent here refers to no other right, privilege, or
immunity secured by the Constitution or federal laws other than the
Due Process Clause of the Fourteenth Amendment simpliciter. The pertinent text of the Fourteenth
Amendment provides:

															"Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws."

															(Emphasis supplied.)

															Unquestionably, respondent's claim satisfies three prerequisites
of a valid due process claim: the petitioners acted under color of
state law; the hobby kit falls within the definition of property;
and the alleged loss, even though negligently Page 451 U. S. 537 caused, amounted to a deprivation. [ Footnote 3 ] Standing alone, however, these three elements
do not establish a violation of the Fourteenth Amendment. Nothing
in that Amendment protects against all deprivations of life,
liberty, or property by the State. The Fourteenth Amendment
protects only against deprivations "without due process of law." Baker v. McCollan, 443 U.S. at 443 U. S. 145 .
Our inquiry therefore must focus on whether the respondent has
suffered a deprivation of property without due process of law. In
particular, we must decide whether the tort remedies which the
State of Nebraska provides as a means of redress for property
deprivations satisfy the requirements of procedural due
process.

															This Court has never directly addressed the question of what
process is due a person when an employee of a State negligently
takes his property. In some cases, this Court has held that due
process requires a predeprivation hearing before the State
interferes with any liberty or property interest enjoyed by its
citizens. In most of these cases, however, the deprivation of
property was pursuant to some established state procedure, and
"process" could be offered before any actual deprivation took
place. For example, in Mullane
v. Page 451 U. S. 538 Central Hanover Trust Co., 339 U.
S. 306 (1950), the Court struck down on due process
grounds a New York statute that allowed a trust company, when it
sought a judicial settlement of its trust accounts, to give notice
by publication to all beneficiaries even if the whereabouts of the
beneficiaries were known. The Court held that personal notice in
such situations was required, and stated that, "when notice is a
person's due, process which is a mere gesture is not due process." Id. at 339 U. S. 315 .
More recently, in Bell v. Burson, 402 U.
S. 535 (1971), we reviewed a state statute which
provided for the taking of the driver's license and registration of
an uninsured motorist who had been involved in an accident. We
recognized that a driver's license is often involved in the
livelihood of a person, and, as such, could not be summarily taken
without a prior hearing. In Fuentes v. Shevin, 407 U. S. 67 (1972), we struck down the Florida prejudgment replevin statute
which allowed secured creditors to obtain writs in ex
parte proceedings. We held that due process required a prior
hearing before the State authorized its agents to seize property in
a debtor's possession. See also Boddie v. Connecticut, 401 U. S. 371 (1971); Goldberg v. Kelly, 397 U.
S. 254 (1970); and Sniadach v. Family Finance
Corp., 395 U. S. 337 (1969). In all these cases, deprivations of property were
authorized by an established state procedure, and due process was
held to require predeprivation notice and hearing in order to serve
as a check on the possibility that a wrongful deprivation would
occur.

															We have, however, recognized that postdeprivation remedies made
available by the State can satisfy the Due Process Clause. In such
cases, the normal predeprivation notice and opportunity to be heard
is pretermitted if the State provides a postdeprivation remedy. In North American Cold Storage Co. v. Chicago, 211 U.
S. 306 (1908), we upheld the right of a State to seize
and destroy unwholesome food without a preseizure hearing. The
possibility of erroneous destruction of property was outweighed by
the fact that the public health Page 451 U. S. 539 emergency justified immediate action and the owner of the
property could recover his damages in an action at law after the
incident. In Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950), we upheld under the Fifth Amendment Due Process Clause the
summary seizure and destruction of drugs without a preseizure
hearing. Similarly, in Fahey v. Mallonee, 332 U.
S. 245 (1947), we recognized that the protection of the
public interest against economic harm can justify the immediate
seizure of property without a prior hearing when substantial
questions are raised about the competence of a bank's management.
In Bowles v. Willingham, 321 U. S. 503 (1944), we upheld in the face of a due process challenge the
authority of the Administrator of the Office of Price
Administration to issue rent control orders without providing a
hearing to landlords before the order or regulation fixing rents
became effective. See also Corn Exchange Bank v. Coler, 280 U. S. 218 (1930); McKay v. McInnes, 279 U.S. 820 (1929); Coffin
Brothers & Co. v. Bennett, 277 U. S.
29 (1928); and Ownbey v. Morgan, 256 U. S.
94 (1921). These cases recognize that either the
necessity of quick action by the State or the impracticality of
providing any meaningful predeprivation process, when coupled with
the availability of some meaningful means by which to assess the
propriety of the State's action at some time after the initial
taking, can satisfy the requirements of procedural due process.
[ Footnote 4 ] As we stated in Mitchell v. W. T. Grant Co., 416 U.
S. 600 (1974):

															"Petitioner asserts that his right to a hearing before his
possession is in any way disturbed is nonetheless Page 451 U. S. 540 mandated by a long line of cases in this Court, culminating in Sniadach v. Family Finance Corp., 395 U. S.
337 (1969), and Fuentes v. Shevin, 407 U. S. 67 (1972). The pre- Sniadach cases are said by petitioner to
hold that 'the opportunity to be heard must precede any actual
deprivation of private property.' Their import, however, is not so
clear as petitioner would have it: they merely stand for the
proposition that a hearing must be had before one is finally
deprived of his property, and do not deal at all with the need for
a pretermination hearing where a full and immediate
post-termination hearing is provided. The usual rule has been"

															"[w]here only property rights are involved, mere postponement of
the judicial enquiry is not a denial of due process if the
opportunity given for ultimate judicial determination of liability
is adequate."

															" Phillips v. Commissioner, 283 U. S.
589 , 283 U. S. 596 -597
(1931)." Id. at 416 U. S. 611 (footnote omitted).

															Our past cases mandate that some kind of hearing is required at
some time before a State finally deprives a person of his property
interests. The fundamental requirement of due process is the
opportunity to be heard, and it is an "opportunity which must be
granted at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545 , 380 U. S. 552 (1965). However, as many of the above cases recognize, we have
rejected the proposition that "at a meaningful time and in a
meaningful manner" always requires the State to provide a hearing
prior to the initial deprivation of property. [ Footnote 5 ] This rejection is based in part on the
impracticability Page 451 U. S. 541 in some cases of providing any preseizure hearing under a
state-authorized procedure, and the assumption that at some time a
full and meaningful hearing will be available.

															The justifications which we have found sufficient to uphold
takings of property without any predeprivation process are
applicable to a situation, such as the present one, involving a
tortious loss of a prisoner's property as a result of a random and
unauthorized act by a state employee. In such a case, the loss is
not a result of some established state procedure, and the State
cannot predict precisely when the loss will occur. It is difficult
to conceive of how the State could provide a meaningful hearing
before the deprivation takes place. The loss of property, although
attributable to the State as action under "color of law," is in
almost all cases beyond the control of the State. Indeed, in most
cases, it is not only impracticable, but impossible, to provide a
meaningful hearing before the deprivation. That does not mean, of
course, that the State can take property without providing a
meaningful postdeprivation hearing. The prior cases which have
excused the prior hearing requirement have rested in part on the
availability of some meaningful opportunity subsequent to the
initial taking for a determination of rights and liabilities.

															A case remarkably similar to the present one is Bonner v.
Coughlin, 517 F.2d 1311 (CA7 1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932 (1978).
There, a prisoner alleged that prison officials "made it possible,
by leaving the door of Plaintiff's cell open, for others without
authority to remove Plaintiff's trial transcript from the cell."
517 F.2d at 1318. The question presented was whether negligence may
support a recovery under § 1983. Then Judge Stevens, writing for a
panel of the Court of Appeals for the Seventh Circuit, recognized
that the question that had to be Page 451 U. S. 542 decided was "whether it can be said that the deprivation was without due process of law.'" Ibid. He
concluded: "It seems to us that there is an important difference between a
challenge to an established state procedure as lacking in due
process and a property damage claim arising out of the misconduct
of state officers. In the former situation, the facts satisfy the
most literal reading of the Fourteenth Amendment's prohibition
against 'state' deprivations of property; in the latter situation,
however, even though there is action 'under color of' state law
sufficient to bring the amendment into play, the state action is
not necessarily complete. For in a case such as this, the law of
Illinois provides, in substance, that the plaintiff is entitled to
be made whole for any loss of property occasioned by the
unauthorized conduct of the prison guards. We may reasonably
conclude, therefore, that the existence of an adequate state remedy
to redress property damage inflicted by state officers avoids the
conclusion that there has been any constitutional deprivation of
property without due process of law within the meaning of the
Fourteenth Amendment." Id. at 1319.

															We believe that the analysis recited above in Bonner is
the proper manner in which to approach a case such as this. This
analysis is also quite consistent with the approach taken by this
Court in Ingraham v. Wright, 430 U.
S. 651 (1977), where the Court was confronted with the
claim that corporal punishment in public schools violated due
process. Arguably, the facts presented to the Court in Ingraham were more egregious than those presented here,
inasmuch as the Court was faced with both an intentional act (as
opposed to negligent conduct) and a deprivation of liberty.
However, we reasoned:

															"'At some point, the benefit of an additional safeguard to the
individual affected . . . and to society in terms of Page 451 U. S. 543 increased assurance that the action is just, may be outweighed
by the cost.' Mathews v. Eldridge, 424 U.S. at 424 U. S. 348 . We think that
point has been reached in this case. In view of the low incidence
of abuse, the openness of our schools, and the common law
safeguards that already exist, the risk of error that may
result in violation of a schoolchild's substantive rights can only
be regarded as minimal. Imposing additional administrative
safeguards as a constitutional requirement might reduce that risk
marginally, but would also entail a significant intrusion into an
area of primary educational responsibility." Id. at 430 U. S. 682 .
(Emphasis supplied.) IV Application of the principles recited above to this case leads
us to conclude the respondent has not alleged a violation of the
Due Process Clause of the Fourteenth Amendment. Although he has
been deprived of property under color of state law, the deprivation
did not occur as a result of some established state procedure.
Indeed, the deprivation occurred as a result of the unauthorized
failure of agents of the State to follow established state
procedure. There is no contention that the procedures themselves
are inadequate, nor is there any contention that it was practicable
for the State to provide a predeprivation hearing. Moreover, the
State of Nebraska has provided respondent with the means by which
he can receive redress for the deprivation. The State provides a
remedy to persons who believe they have suffered a tortious loss at
the hands of the State. See Neb.Rev.Stat. § 81-8,209 et seq. (1976). Through this tort claims procedure, the
State hears and pays claims of prisoners housed in its penal
institutions. This procedure was in existence at the time of the
loss here in question, but respondent did not use it. It is argued
that the State does not adequately protect the respondent's
interests, because it provides only for an action against the
State, as opposed to its individual employees, Page 451 U. S. 544 it contains no provisions for punitive damages, and there is no
right to a trial by jury. Although the state remedies may not
provide the respondent with all the relief which may have been
available if he could have proceeded under § 1983, that does not
mean that the state remedies are not adequate to satisfy the
requirements of due process. The remedies provided could have fully
compensated the respondent for the property loss he suffered, and
we hold that they are sufficient to satisfy the requirements of due
process.

															Our decision today is fully consistent with our prior cases. To
accept respondent's argument that the conduct of the state
officials in this case constituted a violation of the Fourteenth
Amendment would almost necessarily result in turning every alleged
injury which may have been inflicted by a state official acting
under "color of law" into a violation of the Fourteenth Amendment
cognizable under § 1983. It is hard to perceive any logical
stopping place to such a line of reasoning. Presumably, under this
rationale, any party who is involved in nothing more than an
automobile accident with a state official could allege a
constitutional violation under 1983. Such reasoning "would make of
the Fourteenth Amendment a font of tort law to be superimposed upon
whatever systems may already be administered by the States." Paul v. Davis, 424 U. S. 693 , 424 U. S. 701 (1976). We do not think that the drafters of the Fourteenth
Amendment intended the Amendment to play such a role in our
society.

															Accordingly, the judgment of the Court of Appeals is Reversed. [ Footnote 1 ]

															As we explained in Board of Regents v. Roth, 408 U. S. 564 (1972), property interests

															"are not created by the Constitution. Rather, they are created,
and their dimensions are defined, by existing rules or
understandings that stem from an independent source such as state
law -- rules or understandings that secure certain benefits and
that support claims of entitlement to those benefits." Id. at 408 U. S. 577 .
It is not contended that, under Nebraska law, respondent does not
enjoy a property interest in the hobby materials here in
question.

															[ Footnote 2 ]

															Title 18 U. S.C. § 242 provides in pertinent part:

															"Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any inhabitant
of any State, Territory, or District to the deprivation of any
rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States . . . shall be fined not
more than $1,000 or imprisoned not more than one year, or both; and
if death results shall be subject to imprisonment for any term of
years or for life."

															(Emphasis supplied.)

															[ Footnote 3 ]

															Petitioners argue that, even if a negligent deprivation of
respondent's property occurred, there is no evidence in the record
of negligence on their part. There is merit to petitioners'
arguments. Petitioners were not personally involved in the handling
of the packages, and respondent's basic allegation appears to be
that subordinates of petitioners violated established procedures
which, if properly followed, would have ensured the proper delivery
of respondent's packages. In the past, this Court has refused to
accept § 1983 actions premised on theories of respondeat
superior. Monell v. New York City Dept. of Social
Services, 436 U. S. 658 (1978); Rizzo v. Goode, 423 U. S. 362 (1976). On the other hand, there is no indication in the record
that the petitioners ever raised in the District Court the argument
that the loss of property was not caused by their negligence.
Certainly, the District Court did not consider this an open
question. In such a context, and with little or no factual
development at the trial level, we can only accept for purposes of
this opinion the District Court's assumption that petitioners were
negligent and that this negligence contributed to respondent's
loss.

															[ Footnote 4 ]

															In Arnett v. Kennedy, 416 U. S. 134 (1974), JUSTICE WHITE noted the importance of a meaningful
postdeprivation hearing when referring to many of the above
cases:

															"While these cases indicate that the particular interests
involved might not have demanded a hearing immediately, they also
reaffirm the principle that property may not be taken without a
hearing at some time." Id. at 416 U. S. 179 (concurring in part and dissenting in part).

															[ Footnote 5 ]

															As we explained in Mathews v. Eldridge, 424 U.
S. 319 (1976):

															"In recent years, this Court increasingly has had occasion to
consider the extent to which due process requires an evidentiary
hearing prior to the deprivation of some type of property interest
even if such a hearing is provided thereafter. In only one case, Goldberg v. Kelly, 397 U.S. at 397 U. S.
266 -271, has the Court held that a hearing closely
approximating a judicial trial is necessary. In other cases
requiring some type of pretermination hearing as a matter of
constitutional right the Court has spoken sparingly about the
requisite procedures." Id. at 424 U. S.
333 .

															JUSTICE STEWART, concurring.

															It seems to me extremely doubtful that the property loss here,
even though presumably caused by the negligence of state agents, is
the kind of deprivation of property to which the Fourteenth
Amendment is addressed. If it is, then so too would be damages to a
person's automobile resulting from Page 451 U. S. 545 a collision with a vehicle negligently operated by a state
official. To hold that this kind of loss is a deprivation of
property within the meaning of the Fourteenth Amendment seems not
only to trivialize, but grossly to distort, the meaning and intent
of the Constitution.

															But even if Nebraska has deprived the respondent of his property
in the constitutional sense, it has not deprived him of it without
due process of law. By making available to the respondent a
reparations remedy, Nebraska has done all that the Fourteenth
Amendment requires in this context.

															On this understanding, I join the opinion of the Court.

															JUSTICE WHITE, concurring.

															I join the opinion of the Court, but with the reservations
stated by my Brother BLACKMUN in his concurring opinion.

															JUSTICE BLACKMUN, concurring.

															While I join the Court's opinion in this case, I write
separately to emphasize my understanding of its narrow reach. This
suit concerns the deprivation only of property, and was brought
only against supervisory personnel, whose simple "negligence" was
assumed, but, on this record, not actually proved. I do not read
the Court's opinion as applicable to a case concerning deprivation
of life or of liberty. Cf. Moore v. East Cleveland, 431 U. S. 494 (1977). I also do not understand the Court to intimate that the
sole content of the Due Process Clause is procedural regularity. I
continue to believe that there are certain governmental actions
that, even if undertaken with a full panoply of procedural
protection, are, in and of themselves, antithetical to fundamental
notions of due process. See, e.g., Boddie v. Connecticut, 401 U. S. 371 (1971); Roe v. Wade, 410 U. S. 113 (1973).

															Most importantly, I do not understand the Court to suggest that
the provision of "postdeprivation remedies," ante at 451 U.S. 538 , within a
state system would cure the unconstitutional Page 451 U. S. 546 nature of a state official's intentional act that deprives a
person of property. While the "random and unauthorized" nature of
negligent acts by state employees makes it difficult for the State
to "provide a meaningful hearing before the deprivation takes
place," ante at 451 U. S. 541 ,
it is rare that the same can be said of intentional acts by state
employees. When it is possible for a State to institute procedures
to contain and direct the intentional actions of its officials, it
should be required, as a matter of due process, to do so. See
Sniadach v. Family Finance Corp., 395 U.
S. 337 (1969); Fuentes v. Shevin, 407 U. S.
67 (1972); Goldberg v. Kelly, 397 U.
S. 254 (1970). In the majority of such cases, the
failure to provide adequate process prior to inflicting the harm
would violate the Due Process Clause. The mere availability of a
subsequent tort remedy before tribunals of the same authority that,
through its employees, deliberately inflicted the harm complained
of, might well not provide the due process of which the Fourteenth
Amendment speaks.

															JUSTICE POWELL, concurring in the result.

															This case presents the question whether a state prisoner may sue
to recover damages under 42 U.S.C. § 1983, alleging that a
violation of the Due Process Clause of the Fourteenth Amendment
occurred when two shipments mailed to him were lost due to the
negligence of the prison's warden and "hobby manager." Unlike the
Court, I do not believe that such negligent acts by state officials
constitute a deprivation of property within the meaning of the
Fourteenth Amendment, regardless of whatever subsequent procedure a
State may or may not provide. I therefore concur only in the
result.

															The Court's approach begins with three "unquestionable" facts
concerning respondent's due process claim:

															"the petitioners acted under color of state law; the hobby kit
falls within the definition of property; and the alleged loss, even
though negligently caused, amounted to a deprivation. Page 451 U. S. 547 Ante at 451 U. S. 536 -537. It then
goes on to reject respondent's claim on the theory that procedural
due process is satisfied in such a case where a State provides a
'postdeprivation' procedure for seeking redress -- here, a tort
claims procedure. I would not decide this case on that ground, for
two reasons. First, the Court passes over a threshold question --
whether a negligent act by a state official that results in loss of
or damage to property constitutes a deprivation of property for due
process purposes. [ Footnote 2/1 ]
Second, in doing so, the Court suggests a narrow, wholly procedural
view of the limitation imposed on the States by the Due Process
Clause."

															The central question in this case is whether unintentional but negligent acts by state officials,
causing respondent's loss of property, are actionable under the Due
Process Clause. In my view, this question requires the Court to
determine whether intent is an essential element of a due process
claim, just as we have done in cases applying the Equal Protection
Clause [ Footnote 2/2 ] and the
Eighth Amendment's prohibition of "cruel and unusual punishment."
[ Footnote 2/3 ] The intent question
cannot be Page 451 U. S. 548 given "a uniform answer across the entire spectrum of
conceivable constitutional violations which might be the subject of
a § 1983 action," Baker v. McCollan, 443 U.
S. 137 , 443 U. S.
139 -140 (1979). Rather, we must give close attention to
the nature of the particular constitutional violation asserted in
determining whether intent is a necessary element of such a
violation.

															In the due process area, the question is whether intent is
required before there can be a "deprivation" of life, liberty, or
property. In this case, for example, the negligence of the prison
officials caused respondent to lose his property. Nevertheless, I
would not hold that such a negligent act, causing unintended loss
of or injury to property, works a deprivation in the constitutional sense. Thus, no procedure for compensation
is constitutionally required.

															A "deprivation" connotes an intentional act denying something to
someone, or, at the very least, a deliberate decision not to act to
prevent a loss. [ Footnote 2/4 ] The
most reasonable interpretation of the Fourteenth Amendment would
limit due process claims to such active deprivations. [ Footnote 2/5 ] This is the view Page 451 U. S. 549 adopted by an overwhelming number of lower courts, which have
rejected due process claims premised on negligent acts without
inquiring into the existence or sufficiency of the subsequent
procedures provided by the State. [ Footnote 2/6 ] In addition, such a rule would avoid
trivializing the right of action provided in § 1983. That provision
was enacted to deter real abuses by state officials in the exercise
of governmental powers. It would make no sense to open the federal
courts to lawsuits where there has been no affirmative abuse of
power, merely a negligent deed by one who happens to be acting
under color of state law. See 451
U.S. 527 fn2/12|>n. 12, infra. [ Footnote 2/7 ] Page 451 U. S. 550 The Court appears unconcerned about this prospect, probably
because of an implicit belief in the availability of state tort
remedies in most cases. In its view, such remedies will satisfy
procedural due process, and relegate cases of official negligence
to nonfederal forums. But the fact is that this rule would "make of
the Fourteenth Amendment a font of tort law," Paul v.
Davis, 424 U. S. 693 , 424 U. S. 701 (1976), whenever a State has failed to provide a remedy for
negligent invasions of liberty or property interests. [ Footnote 2/8 ] Moreover, despite Page 451 U. S. 551 the breadth of.state tort remedies, such claims will be more
numerous than might at first be supposed. In Kent v.
Prasse, 385 F.2d 406 (CA3 1967) (per curiam), for example, a
state prisoner was forced to work on a faulty machine, sustained an
injury, and brought suit against prison officials. The United
States Court of Appeals for the Third Circuit noted that the State,
unfortunately, did not provide compensation for this injury, but
stated:

															"Nor are we able to perceive that a tort committed by a state
official acting under color of law is, in and of itself, sufficient
to show an invasion of a person's right under [§ 1983]. While not
dispositive, we note that there is no allegation that defendants
violated any state criminal law or acted out of bad motive. Nor [is
it] alleged that any state law was not enforced by the
defendants." Id. at 407. [ Footnote
2/9 ] Rather than reject this reasoning, I would adopt the view
that negligent official acts do not provide any basis for
inquiries Page 451 U. S. 552 by federal courts into the existence, or procedural adequacy, of
applicable state tort remedies.

															Such an approach has another advantage; it avoids a somewhat
disturbing implication in the Court's opinion concerning the scope
of due process guarantees. The Court analyzes this case solely in
terms of the procedural rights created by the Due Process Clause.
Finding state procedures adequate, it suggests that no further
analysis is required of more substantive limitations on state
action located in this Clause. Cf. Paul v. Davis, supra, at 424 U. S.
712 -714 (assessing the claim presented in terms of the
"substantive aspects of the Fourteenth Amendment"); Ingraham v.
Wright, 430 U. S. 651 , 430 U. S. 679 ,
n. 47 (1977) (leaving open the question whether "corporal
punishment of a public school child may give rise to an independent
federal cause of action to vindicate substantive rights under the
Due Process Clause").

															The Due Process Clause imposes substantive limitations on state
action, and, under proper circumstances, [ Footnote 2/10 ] these limitations Page 451 U. S. 553 may extend to intentional and malicious deprivations of liberty
[ Footnote 2/11 ] and property,
[ Footnote 2/12 ] even where
compensation is available under state law. The Court, however,
fails altogether to discuss the possibility that the kind of state
action alleged here constitutes a violation of the substantive
guarantees of the Due Process Clause. As I do not consider a
negligent act the kind of deprivation that implicates the
procedural guarantees of the Due Process Clause, I certainly would
not view negligent acts as violative of these substantive
guarantees. But the Court concludes that there has been such a
deprivation. And yet it avoids entirely the question whether the
Due Process Clause may place substantive limitations on this form
of governmental conduct.

															In sum, it seems evident that the reasoning and decision of the
Court today, even if viewed as compatible with our precedents,
create new uncertainties as well as invitations to Page 451 U. S. 554 litigate under a statute that already has burst its historical
bounds. [ Footnote 2/13 ]

															[ Footnote 2/1 ]

															Assuming that there was a "deprivation" of the hobby kit under
color of state law in this case, I would agree with the Court's
conclusion that state tort remedies provide adequate procedural
protection. Cf. Ingraham v. Wright, 430 U.
S. 651 , 430 U. S.
674 -682 (1977) (common law remedies are adequate to
afford procedural due process in cases of corporal punishment of
students).

															[ Footnote 2/2 ] Washington v. Davis, 426 U. S. 229 (1976); Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U. S. 252 (1977) (invidious discriminatory purpose required for claim of
racial discrimination under the Equal Protection Clause).

															[ Footnote 2/3 ]

															In Estelle v. Gamble, 429 U. S. 97 , 429 U. S. 105 (1976), we held that "deliberate indifference to a prisoner's
serious illness or injury" on the part of prison officials is
sufficient to constitute an "infliction" of cruel and unusual
punishment under the Eighth Amendment. We also stated that an

															"accident, although it may produce added anguish, is not, on
that basis alone, to be characterized as wanton infliction of
unnecessary pain." Ibid. Estelle v. Gamble thus supports my view
of the Due Process Clause -- which requires consideration not only
of the effect of an injury or loss on a citizen, but also of the
intent of the state official whose actions caused the injury or
loss.

															[ Footnote 2/4 ]

															According to Webster's New International Dictionary of the
English Language (2d ed.1945), to "deprive" is to "dispossess;
bereave; divest; to hinder from possessing; debar; shut out."

															[ Footnote 2/5 ]

															In analogous contexts, we have held that the intent of state
officials is a relevant factor to consider in determining whether
an individual has suffered a denial of due process. In United
States v. Lovasco, 431 U. S. 783 , 431 U. S. 790 (1977), involving preindictment prosecutorial delay, we held
that

															"proof of prejudice is generally a necessary, but not
sufficient, element of a due process claim, and . . . the due
process inquiry must consider the reasons for the delay as well as
the prejudice to the accused."

															Similarly, in Baker v. McCollan, 443 U.
S. 137 (1979), the Court reviewed a claimed violation of
due process occurring when a sheriff arrested the individual named
in an arrest warrant and failed for a time to realize that the
warrant itself had named the wrong person. The Court there noted
that "the state of mind of the defendant may be relevant on the
issue of whether a constitutional violation has occurred in the
first place," id. at 443 U. S. 140 ,
n. 1, and went on to hold that there had been no deprivation of
liberty without due process of law. The Court reasoned that there
is no duty to investigate "every claim of innocence," id. at 443 U. S. 146 ,
and no constitutional requirement of an "error-free investigation
of such a claim," ibid. It relied on the fact that the
sheriff had acted reasonably in relying on a facially valid arrest
warrant, thus implicitly distinguishing a case involving an
intentional deprivation of liberty without cause.

															To be sure, even where there has been an intentional deprivation
of property, due process claims also must satisfy the requirement
that the act be sufficiently linked to an official's state-created
duties or powers to constitute "state action." See 451
U.S. 527 fn2/10|>n. 10, infra. [ Footnote 2/6 ] See, e.g., Williams v. Kelley, 624 F.2d 695 (CA5 1980), cert. pending, No. 80-6165; Bonner v. Coughlin, 545 F.2d 565 (CA7 1976) (en banc), cert. denied, 435 U.S.
932 (1978); Harper v. Cserr, 544 F.2d 1121, 1124 (CA1
1976); Williams v. Vincent, 508 F.2d 541, 546 (CA2 1974); Jenkins v. Averett, 424 F.2d 1228, 1232 (CA4 1970); Kent v. Prasse, 385 F.2d 406 (CA3 1967) (per curiam). See also Paul v. Davis, 424 U. S. 693 , 424 U. S. 698 (1976) (suggesting that there should not be a § 1983 action in
favor of "the survivors of an innocent bystander mistakenly shot by
a policeman or negligently killed by a sheriff driving a government
vehicle").

															There is no occasion here to express any view as to the
possibility of negligent violations of other, more particular
constitutional guarantees.

															[ Footnote 2/7 ]

															We have previously expressed concerns about the prospect that
the Due Process Clause may become a vehicle for federal litigation
of state torts. In Paul v. Davis, supra, we held that an
official action damaging the reputation of a private citizen,
although an actionable tort under state law, did not constitute a
deprivation of "liberty" within the meaning of the Fourteenth
Amendment. In so holding, we relied principally on the fact that
the individual's interest in his reputation was not accorded a
"legal guarantee of present enjoyment" under state law, since it
was "simply one of a number [of interests] which the State may
protect against injury by virtue of its tort law." Id. at 424 U. S.
711 -712.

															Attention to the "guarantees" provided by state law is at least
as appropriate in a case involving an alleged deprivation of
"property." It is clear that the hobby kit was respondent's
"property." But it also is clear that, under state law, no remedy
other than tort law protects property from interferences caused by
the negligence of others. The reasoning of Paul v. Davis would suggest, therefore, that the enjoyment of property free of
negligent interference is not sufficiently "guaranteed" by state
law to justify a due process claim based on official
negligence.

															A State perhaps could constitutionalize certain negligent
actions by state officials by criminalizing negligence, thus
extending its guarantee to this kind of interference. Instead, the
States merely have created systems for civil compensation of tort
victims. In this sense, state law draws a clear distinction between
negligently caused injuries and intentional thefts or assaults.

															[ Footnote 2/8 ]

															One additional problem with the Court's purely procedural
approach is worth noting. In Kent v. Prasse, supra, the
Third Circuit faced a claimed deprivation of procedural due process
by prison officials based on the failure of a State to provide a
tort remedy for official negligence -- the exact claim validated by
the Court today. The court noted that, "[i]n any event, such a
deprivation would be the work of the state, not these defendants."
385 F.2d at 407. Arguably, if the absence of a tort remedy is the
heart of one's constitutional claim, the defendant in the § 1983
suit must be the State itself, or its lawmakers, both of whom are
immune from suit. See Tenney v. Brandhove, 341 U.
S. 367 (1951) (legislators); Edelman v. Jordan, 415 U. S. 651 , 415 U. S.
662 -663 (1974) (Eleventh Amendment bars suits against
States in federal court). If so, the only remedy available to
plaintiffs would be a more substantive due process claim -- where
grounds for such a claim exist. The Court does not discuss this
possibility.

															[ Footnote 2/9 ]

															Another example is presented in the case of Hamilton v.
Stover, cert. pending, No. 80-1419 (filed Feb. 20, 1981),
involving a collision between a police car and another car. In an
unpublished order, the Sixth Circuit affirmed dismissal of a
resulting § 1983 action against the policeman, reasoning that
negligent driving cannot constitute a deprivation of constitutional
rights. Hamilton v. Stover, No. 79-3562 (Nov. 24, 1980).
In his brief in this Court, however, the policeman points out that
he and the employing municipality possess absolute immunity under
Ohio law, Ohio Rev.Code § 701.02 (1976), for acts while responding
to an emergency call. If this immunity has the effect of cutting
off all state law remedies, under the Court's reasoning, there
appears to be a deprivation of procedural due process, actionable
in federal court.

															[ Footnote 2/10 ]

															Even intentional injuries inflicted by state officials must be
"state action" to implicate the due process guarantees, and must be
"under color of" state law in order to be actionable under § 1983.
In this area, we have drawn a distinction between mere "torts of
state officials" and "acts done under color' of law . . . which
deprived a person of some right secured by the Constitution or laws
of the United States." Screws v. United States, 325 U. S. 91 , 325 U. S. 109 (1945) (plurality opinion of Douglas, J.) (discussing the criminal
analogue of § 1983 -- now codified as 18 U.S.C. § 242). Actionable
deprivations must be based on "`[m]isuse of power, possessed by
virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law.'" Ibid. (quoting United States v. Classic, 313 U.
S. 299 , 313 U. S. 326 (1941)). See also Screws, supra, at 325 U. S. 134 (Rutledge, J., concurring in result) (the Constitution protects the
"right not to be deprived of life or liberty by a state officer who takes it by abuse of his office and its power ")
(emphasis added). Where state officials cause injuries in ways that
are equally available to private citizens, constitutional issues
are not necessarily raised. As Justice Douglas put it in Screws: "The fact that a prisoner is assaulted, injured, or even
murdered by state officials does not necessarily mean that he is
deprived of any right protected or secured by the Constitution or
laws of the United States."

															325 U.S. at 325 U. S.
108 .

															[ Footnote 2/11 ] See, e.g., Rochin v. California, 342 U.
S. 165 (1952); Hall v. Tawney, 621 F.2d 607,
613 (CA4 1980) (corporal punishment of students may have violated
due process if it "amounted to a brutal and inhumane abuse of
official power literally shocking to the conscience"); Bellows
v. Dainack, 555 F.2d 1105, 1106, n. 1 (CA2 1977) (use of
excessive force by policeman during the course of an arrest
constitutes a deprivation of "liberty" without due process).

															[ Footnote 2/12 ] See, e.g., Kimbrough v. O'Neil, 545 F.2d 1059, 1061
(CA7 1976) (en banc) ("a taking with intent (or reckless disregard)
of a claimant's property by a State agent violates the Due Process
Clause of the Fourteenth Amendment and is actionable under Section
1983"); Carter v. Estelle, 519 F.2d 1136, 1136-137 (CA5
1975) (per curiam) (same). See also San Diego Gas &
Electric Co. v. San Diego, 450 U. S. 621 , 450 U. S. 656 ,
n. 23 (1981) (BRENNAN, J., dissenting) (when property is taken by
the government, but not in furtherance of a "public use," "the
government entity may not be forced to pay just compensation under
the Fifth Amend ment, [but] the landowner may nevertheless have a
damages cause of action under 42 U.S.C. § 1983 for a Fourteenth
Amendment due process violation").

															[ Footnote 2/13 ]

															Section 1983 was enacted in 1871 as one of the statutes intended
to implement the Fourteenth Amendment. For many years, it remained
a little-used, little-known section of the Code. In the past two
decades, however, resourceful counsel and receptive courts have
extended its reach vastly. This statute, with a clearly understood
and commendable purpose, no longer is confined to deprivations of
individual rights, as intended in 1871. As a result, § 1983 has
become a major vehicle for general litigation in the federal courts
by individuals and corporations.

															Professor Christina Whitman recently has addressed this
expansion of § 1983 with a comprehensive assessment of arguable
pluses and minuses. See Whitman, Constitutional Torts, 79
Mich.L.Rev. 5 (1980). There will be no pluses, however, if the
striking escalation of suits under § 1983 against state and local
officials is augmented by suits based on negligent conduct.
Professor Whitman noted, for example, that civil rights petitions
by state prisoners in federal court increased from 218 cases in
1966 to 11,195 in 1979. Id. at 6. See also the
Annual Report of the Director of the Administrative Office of the
U.S. Courts 62 (1980), reporting a further increase in this number
to 12,397 in 1980. The societal costs of using this statute for a
purpose never contemplated are high indeed:

															"First, the existence of the statutory cause of action means
that every expansion of constitutional rights [through § 1983] will
increase the caseload of already overburdened federal courts. This
increase dilutes the ability of federal courts to defend our most
significant rights. Second, every [such] expansion . . . displaces
state lawmaking authority by diverting decisionmaking to the
federal courts."

															Whitman, supra, at 25.

															The present case, involving a $23 loss, illustrates the extent
to which constitutional law has been trivialized, and federal
courts often have been converted into small claims tribunals. There
is little justification for making such a claim a federal case,
requiring a decision by a district court, an appeal as a matter of
right to a court of appeals, and potentially, consideration of a
petition for certiorari in this Court. It is not in the interest of
claimants or of society for disputes of this kind to be resolved by
litigation that may take years, particularly in an overburdened
federal system that never was designed to be utilized in this way.
Congress, recognizing the problem with respect to prisoner
petitions, enacted last year the Civil Rights of Institutionalized
Persons Act, Pub.L. 96-247, 94 Stat. 349, authorizing federal
courts to continue § 1983 prisoner cases for up to 90 days to allow
recourse to administrative remedies. The grievance procedures,
however, must be certified by the Attorney General or determined by
the court to be in compliance with not insubstantial procedural
requirements. Id. § 7, 42 U.S.C. § 1997e (1976 ed., Supp.
IV). As a result, the Act continues to allow resort to the federal
courts in many cases of this kind. In view of increasing damages
suit litigation under § 1983, and the inability of courts to
identify principles that can be applied consistently, perhaps the
time has come for a revision of this century-old statute -- a
revision that would clarify its scope while preserving its
historical function of protecting individual rights from unlawful
state action.

															JUSTICE MARSHALL, concurring in part and dissenting in part.

															I join the opinion of the Court insofar as it holds that
negligent conduct by persons acting under color of state law Page 451 U. S. 555 may be actionable under 42 U.S.C. § 1983. Ante at 451 U. S.
534 -535. I also agree with the majority that, in cases
involving claims of negligent deprivation of property
without due process of law, the availability of an adequate
postdeprivation cause of action for damages under state law may
preclude a finding of a violation of the Fourteenth Amendment. I
part company with the majority, however, over its conclusion that
there was an adequate state law remedy available to respondent in
this case. My disagreement with the majority is not because of any
shortcomings in the Nebraska tort claims procedure. [ Footnote 3/1 ] Rather, my problem is with
the majority's application of its legal analysis to the facts of
this case.

															It is significant, in my view, that respondent is a state
prisoner whose access to information about his legal rights is
necessarily limited by his confinement. Furthermore, there is no
claim that either petitioners or any other officials informed
respondent that he could seek redress for the alleged deprivation
of his property by filing an action under the Nebraska tort claims
procedure. This apparent failure takes Page 451 U. S. 556 on additional significance in light of the fact that respondent
pursued his complaint about the missing hobby kit through the
prison's grievance procedure. [ Footnote
3/2 ] In cases such as this, I believe prison officials have an
affirmative obligation to inform a prisoner who claims that he is
aggrieved by official action about the remedies available under
state law. If they fail to do so, then they should not be permitted
to rely on the existence of such remedies as adequate alternatives
to a § 1983 action for wrongful deprivation of property. Since
these prison officials do not represent that respondent was
informed about his rights under state law, I cannot join in the
judgment of the Court in this case.

															Thus, although I agree with much of the majority's reasoning, I
would affirm the judgment of the Court of Appeals.

															[ Footnote 3/1 ]

															To be sure, the state remedies would not have afforded
respondent all the relief that would have been available in a §
1983 action. See ante at 451 U. S.
543 -544. I nonetheless agree with the majority that
"they are sufficient to satisfy the requirements of due process." Ante at 451 U. S.
544 .

															[ Footnote 3/2 ]

															In fact, the prison officials did not raise the issue of the
availability of a state law remedy in either the District Court or
the Court of Appeals. The issue was first presented in the petition
for rehearing filed in the Court of Appeals.