Hudson v. Palmer

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 82-1630 Argued: December 7, 1983 --- Decided: July 3, 1984 [*]
CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari in No. 82-1630 to decide whether a prison inmate has a reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches and seizures. We also granted certiorari in No. 82-6695, the cross-petition, to determine whether our decision in Parratt v. Taylor, 451 U.S. 527 (1981), which held that a negligent deprivation of property by state officials does not violate the Fourteenth Amendment if an adequate postdeprivation state remedy exists, should extend to intentional deprivations of property.

I

The facts underlying this dispute are relatively simple. Respondent Palmer is an inmate at the Bland Correctional Center in Bland, Va., serving sentences for forgery, uttering, grand larceny, and bank robbery convictions. On September 16, 1981, petitioner Hudson, an officer at the Correctional Center, with a fellow officer, conducted a "shakedown" search of respondent's prison locker and cell for contraband. During the "shakedown," the officers discovered a ripped pillowcase in a trash can near respondent's cell bunk. Charges [p520] against Palmer were instituted under the prison disciplinary procedures for destroying state property. After a hearing, Palmer was found guilty on the charge and was ordered to reimburse the State for the cost of the material destroyed; in addition, a reprimand was entered on his prison record.

Palmer subsequently brought this pro se action in United States District Court under 42 U.S.C. § 1983. Respondent claimed that Hudson had conducted the shakedown search of his cell and had brought a false charge against him solely to harass him, and that, in violation of his Fourteenth Amendment right not to be deprived of property without due process of law, Hudson had intentionally destroyed certain of his noncontraband personal property during the September 16 search. Hudson denied each allegation; he moved for and was granted summary judgment. The District Court accepted respondent's allegations as true, but held nonetheless, relying on Parratt v. Taylor, supra, that the alleged destruction of respondent's property, even if intentional, did not violate the Fourteenth Amendment, because there were state tort remedies available to redress the deprivation, App. 31 [n1] and that the alleged harassment did not "rise to the level of a constitutional deprivation," id. at 32.

The Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. 697 F.2d 1220 (CA4 1983). The court affirmed the District Court's holding that respondent was not deprived of his property without due process. The court acknowledged that we considered only a claim of negligent property deprivation in Parratt v. Taylor, supra. It agreed with the District Court, however, that the logic of Parratt applies equally to unauthorized intentional deprivations of property by state officials:

[O]nce it is assumed [p521] that a postdeprivation remedy can cure an unintentional but negligent act causing injury, inflicted by a state agent which is unamenable to prior review, then that principle applies as well to random and unauthorized intentional acts.

697 F.2d at 1223. [n2] The Court of Appeals did not discuss the availability and adequacy of existing state law remedies; it presumably accepted as correct the District Court's statement of the remedies available under Virginia law. [n3]

The Court of Appeals reversed the summary judgment on respondent's claim that the shakedown search was unreasonable. The court recognized that Bell v. Wolfish, 441 U.S. 520, 555-557 (1979), authorized irregular unannounced shakedown searches of prison cells. But the court held that an individual prisoner has a "limited privacy right" in his cell, entitling him to protection against searches conducted solely to harass or to humiliate. 697 F.2d at 1225. [n4] The shakedown of a single prisoner's property, said the court, is permissible [p522] only if

done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband

or upon reasonable belief that the particular prisoner possessed contraband. Id. at 1224. Because the Court of Appeals concluded that the record reflected a factual dispute over whether the search of respondent's cell was routine or conducted to harass respondent, it held that summary judgment was inappropriate, and that a remand was necessary to determine the purpose of the cell search.

We granted certiorari. 463 U.S. 1206 (1983). We affirm in part and reverse in part.

II

A

The first question we address is whether respondent has a right of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches. [n5] As we have noted, the Court of Appeals held that the District Court's summary judgment in petitioner's favor was premature because respondent had a "limited privacy right" in his cell that might have been breached. The court concluded that, to protect this privacy right, shakedown searches of an individual's cell should be performed only

pursuant to an established program of conducting random [p523] searches . . . reasonably designed to deter or discover the possession of contraband

or upon reasonable belief that the prisoner possesses contraband. Petitioner contends that the Court of Appeals erred in holding that respondent had even a limited privacy right in his cell, and urges that we adopt the "bright line" rule that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection.

We have repeatedly held that prisons are not beyond the reach of the Constitution. No "iron curtain" separates one from the other. Wolff v. McDonnell, 418 U.S. 539, 555 (1974). Indeed, we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. For example, we have held that invidious racial discrimination is as intolerable within a prison as outside, except as may be essential to "prison security and discipline." Lee v. Washington, 390 U.S. 333 (1968) (per curiam). Like others, prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts. Johnson v. Avery, 393 U.S. 483 (1969).

Prisoners must be provided "reasonable opportunities" to exercise their religious freedom guaranteed under the First Amendment. Cruz v. Beto, 405 U.S. 319 (1972) (per curiam). Similarly, they retain those First Amendment rights of speech "not inconsistent with [their] status as . . . prisoner[s] or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). They enjoy the protection of due process. Wolff v. McDonnell, supra; Haines v. Kerner, 404 U.S. 519 (1972). And the Eighth Amendment ensures that they will not be subject to "cruel and unusual punishments." Estelle v. Gamble, 429 U.S. 97 (1976). The continuing guarantee of these substantial rights to prison inmates is testimony to a belief that the way a society treats those who have transgressed [p524] against it is evidence of the essential character of that society.

However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. See Bell v. Wolfish, 441 U.S. at 545. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948); see also Bell v. Wolfish, supra, at 545-546, and cases cited; Wolff v. McDonnell, supra, at 555. The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, Wolff v. McDonnell, supra, at 555, chief among which is internal security, see Pell v. Procunier, supra, at 823. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.

We have not before been called upon to decide the specific question whether the Fourth Amendment applies within a prison cell, [n6] but the nature of our inquiry is well defined. [p525] We must determine here, as in other Fourth Amendment contexts, if a "justifiable" expectation of privacy is at stake. Katz v. United States, 389 U.S. 347 (1967). The applicability of the Fourth Amendment turns on whether

the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action.

Smith v. Maryland, 442 U.S. 735, 740 (1979), and cases cited. We must decide, in Justice Harlan's words, whether a prisoner's expectation of privacy in his prison cell is the kind of expectation that "society is prepared to recognize as ‘reasonable.'" Katz, supra, at 360, 361 (concurring opinion). [n7]

Notwithstanding our caution in approaching claims that the Fourth Amendment is inapplicable in a given context, we [p526] hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.

Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial criminal, and often violent, conduct. Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others. Even a partial survey of the statistics on violent crime in our Nation's prisons illustrates the magnitude of the problem. During 1981 and the first half of 1982, there were over 120 prisoners murdered by fellow inmates in state and federal prisons. A number of prison personnel were murdered by prisoners during this period. Over 29 riots or similar disturbances were reported in these facilities for the same timeframe. And there were over 125 suicides in these institutions. See Prison Violence, 7 Corrections Compendium (Mar.1983). Additionally, informal statistics from the United States Bureau of Prisons show that, in the federal system during 1983, there were 11 inmate homicides, 359 inmate assaults on other inmates, 227 inmate assaults on prison staff, and 10 suicides. There were in the same system in 1981 and 1982 over 750 inmate assaults on other inmates and over 570 inmate assaults on prison personnel.

Within this volatile "community," prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable [p527] measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today; they must prevent, so far as possible, the flow of illicit weapons into the prison; they must be vigilant to detect escape plots, in which drugs or weapons may be involved, before the schemes materialize. In addition to these monumental tasks, it is incumbent upon these officials at the same time to maintain as sanitary an environment for the inmates as feasible, given the difficulties of the circumstances.

The administration of a prison, we have said, is "at best an extraordinarily difficult undertaking." Wolff v. McDonnell, 418 U.S. at 566; Hewitt v. Helms, 459 U.S. 460, 467 (1983). But it would be literally impossible to accomplish the prison objectives identified above if inmates retained a right of privacy in their cells. Virtually the only place inmates can conceal weapons, drugs, and other contraband is in their cells. Unfettered access to these cells by prison officials, thus, is imperative if drugs and contraband are to be ferreted out and sanitary surroundings are to be maintained.

Determining whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a balancing of interests. The two interests here are the interest of society in the security of its penal institutions and the interest of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: a prison "shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room." Lanza v. New York, 370 U.S. 139, 143-144 (1962). We strike the balance in favor of institutional security, which we have noted is "central to all other corrections goals," Pell v. Procunier, 417 U.S. at 823. A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells [p528] required to ensure institutional security and internal order. [n8] We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement." Bell v. Wolfish, 441 U.S. at 537. The Court of Appeals was troubled by the possibility of searches conducted solely to harass inmates; it reasoned that a requirement that searches be conducted only pursuant to an established policy or upon reasonable suspicion would prevent such searches to the maximum extent possible. Of course, there is a risk of maliciously motivated searches, and of course, intentional harassment of even the most hardened criminals cannot be tolerated by a civilized society. However, we disagree with the court's proposed solution. The uncertainty that attends random searches of cells renders these searches perhaps the most effective weapon of the prison administrator in the constant fight against the proliferation of knives and guns, illicit drugs, and other contraband. The Court of Appeals candidly acknowledged that "the device [of random cell searches] is of . . . obvious utility in achieving the goal of prison security." 697 F.2d at 1224. [p529]

A requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon. It is simply naive to believe that prisoners would not eventually decipher any plan officials might devise for "planned random searches," and thus be able routinely to anticipate searches. The Supreme Court of Virginia identified the shortcomings of an approach such as that adopted by the Court of Appeals and the necessity of allowing prison administrators flexibility:

For one to advocate that prison searches must be conducted only pursuant to an enunciated general policy or when suspicion is directed at a particular inmate is to ignore the realities of prison operation. Random searches of inmates, individually or collectively, and their cells and lockers are valid and necessary to ensure the security of the institution and the safety of inmates and all others within its boundaries. This type of search allows prison officers flexibility and prevents inmates from anticipating, and thereby thwarting, a search for contraband.

Marrero v. Commonwealth, 222 Va. 754, 757, 284 S.E.2d 809, 811 (1981). We share the concerns so well expressed by the Supreme Court and its view that wholly random searches are essential to the effective security of penal institutions. We, therefore, cannot accept even the concededly limited holding of the Court of Appeals.

Respondent acknowledges that routine shakedowns of prison cells are essential to the effective administration of prisons. Brief for Respondent and Cross-Petitioner 7, n. 5. He contends, however, that he is constitutionally entitled not to be subjected to searches conducted only to harass. The crux of his claim is that,

because searches and seizures to harass are unreasonable, a prisoner has a reasonable expectation of privacy not to have his cell, locker, personal effects, person invaded for such a purpose.

Id. at 24. This argument, [p530] which assumes the answer to the predicate question whether a prisoner has a legitimate expectation of privacy in his prison cell at all, is merely a challenge to the reasonableness of the particular search of respondent's cell. Because we conclude that prisoners have no legitimate expectation of privacy, and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells, we need not address this issue.

Our holding that respondent does not have a reasonable expectation of privacy enabling him to invoke the protections of the Fourth Amendment does not mean that he is without a remedy for calculated harassment unrelated to prison needs. Nor does it mean that prison attendants can ride roughshod over inmates' property rights with impunity. The Eighth Amendment always stands as a protection against "cruel and unusual punishments." By the same token, there are adequate state tort and common law remedies available to respondent to redress the alleged destruction of his personal property. See discussion infra at 534-536. [n9]

B

In his complaint in the District Court, in addition to his claim that the shakedown search of his cell violated his Fourth and Fourteenth Amendment privacy rights, respondent alleged under 42 U.S.C. § 1983 that petitioner intentionally destroyed certain of his personal property during the search. This destruction, respondent contended, deprived him of property without due process, in violation of the Due Process Clause of the Fourteenth Amendment. The District Court dismissed this portion of respondent's complaint for failure to state a claim. Reasoning under Parratt v. Taylor, [p531] 451 U.S. 527 (1981), it held that even an intentional destruction of property by a state employee does not violate due process if the state provides a meaningful postdeprivation remedy. The Court of Appeals affirmed. The question presented for our review in Palmer's cross-petition is whether our decision in Parratt v. Taylor should extend, as the Court of Appeals held, to intentional deprivations of property by state employees acting under color of state law. [n10]

In Parratt v. Taylor, a state prisoner sued prison officials under 42 U.S.C. § 1983 alleging that their negligent loss of a hobby kit he ordered from a mail-order catalog deprived him of property without due process of law, in violation of the Fourteenth Amendment. The Court of Appeals for the Eighth Circuit had affirmed the District Court's summary judgment in the prisoner's favor. We reversed, holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state employee negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy. [n11]

We viewed our decision in Parratt as consistent with prior cases recognizing 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 [p532] meaningful means by which to assess the propriety of the State's action at some time after the initial taking . . . satisf[ies] the requirements of procedural due process.

451 U.S. at 539 (footnote omitted). We reasoned that, where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Id. at 541. Under these circumstances, we observed:

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.

Ibid. [n12] Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action. [n13] [p533]

While Parratt is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of Parratt is that, when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply "impracticable," since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the "practicability" of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate, because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signaling his intent.

If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is impracticable, it follows that intentional deprivations do not violate that Clause, provided, of course, that adequate state postdeprivation remedies are available. Accordingly, we hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent, deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy. [n14] [p534]

Respondent presses two arguments that require at least brief comment. First, he contends that, because an agent of the state who intends to deprive a person of his property "can provide predeprivation process, then as a matter of due process, he must do so." Brief for Respondent and Cross-Petitioner 8 (emphasis in original). This argument reflects a fundamental misunderstanding of Parratt. There we held that postdeprivation procedures satisfy due process because the state cannot possibly know in advance of a negligent deprivation of property. Whether an individual employee himself is able to foresee a deprivation is simply of no consequence. The controlling inquiry is solely whether the state is in a position to provide for predeprivation process.

Respondent also contends, citing to Logan v. Zimmerman Brush Co., supra, that the deliberate destruction of his property by petitioner constituted a due process violation despite the availability of postdeprivation remedies. Brief for Respondent and Cross-Petitioner 8. In Logan, we decided a question about which our decision in Parratt left little doubt, that is, whether a postdeprivation state remedy satisfies due process where the property deprivation is effected pursuant to an established state procedure. We held that it does not. Logan plainly has no relevance here. Respondent does not even allege that the asserted destruction of his property occurred pursuant to a state procedure.

Having determined that Parratt extends to intentional deprivations of property, we need only decide whether the Commonwealth of Virginia provides respondent an adequate postdeprivation remedy for the alleged destruction of his property. Both the District Court and, at least implicitly, the Court of Appeals held that several common law remedies [p535] available to respondent would provide adequate compensation for his property loss. We have no reason to question that determination, particularly given the speculative nature of respondent's arguments.

Palmer does not seriously dispute the adequacy of the existing state law remedies themselves. He asserts in this respect only that, because certain of his legal papers allegedly taken "may have contained things irreplacable [sic], and incompensable" or "may also have involved sentimental items which are of equally intangible value," Brief for Respondent and Cross-Petitioner 10-11, n. 10, a suit in tort, for example, would not "necessarily" compensate him fully. If the loss is "incompensable," this is as much so under § 1983 as it would be under any other remedy. In any event, that Palmer might not be able to recover under these remedies the full amount which he might receive in a § 1983 action is not, as we have said, determinative of the adequacy of the state remedies. See Parratt, 451 U.S. at 544.

Palmer contends also that relief under applicable state law "is far from certain and complete," because a state court might hold that petitioner, as a state employee, is entitled to sovereign immunity. Brief for Respondent and Cross-Petitioner 11. This suggestion is unconvincing. The District Court and the Court of Appeals held that respondent's claim would not be barred by sovereign immunity. As the District Court noted, under Virginia law, "a State employee may be held liable for his intentional torts," Elder v. Holland, 208 Va. 15, 19, 155 S.E.2d 369, 372-373 (1967); see also Short v. Griffitts, 220 Va. 53, 255 S.E.2d 479 (1979). Indeed, respondent candidly acknowledges that it is "probable that a Virginia trial court would rule that there should be no immunity bar in the present case." Brief for Respondent and Cross-Petitioner 14.

Respondent attempts to cast doubt on the obvious breadth of Elder through the naked assertion that

the phrase "may [p536] be held liable" could have meant . . . only the possibility of liability under certain circumstances, rather than a blanket rule. . . .

Brief for Respondent and Cross-Petitioner 13. We are equally unpersuaded by this speculation. The language of Elder is unambiguous that employees of the Commonwealth do not enjoy sovereign immunity for their intentional torts, and Elder has been so read by a number of federal courts, as respondent concedes, see Brief for Respondent and Cross-Petitioner 13, n. 13. See, e.g., Holmes v. Wampler, 546 F.Supp. 500, 504 (ED Va.1982); Irshad v. Spann, 543 F.Supp. 922, 928 (ED Va.1982); Frazier v. Collins, 544 F.Supp. 109, 110 (ED Va.1982); Whorley v. Karr, 534 F.Supp. 88, 89 (WD Va.1981); Daughtry v. Arlington County, Va., 490 F.Supp. 307 (DC 1980). [n15] In sum, it is evident here, as in Parratt, that the State has provided an adequate postdeprivation remedy for the alleged destruction of property.

III

We hold that the Fourth Amendment has no applicability to a prison cell. We hold also that, even if petitioner intentionally destroyed respondent's personal property during the challenged shakedown search, the destruction did not violate the Fourteenth Amendment, since the Commonwealth of Virginia has provided respondent an adequate postdeprivation remedy.

Accordingly, the judgment of the Court of Appeals reversing and remanding the District Court's judgment on respondent's [p537] claim under the Fourth and Fourteenth Amendments is reversed. The judgment affirming the District Court's decision that respondent has not been denied due process under the Fourteenth Amendment is affirmed.

It is so ordered.

* Together with No. 82-6695, Palmer v. Hudson, also on certiorari to the same court.

1. The District Court determined that Palmer could proceed against Hudson in state court either for conversion or for detinue, and that, under applicable Virginia law, see Elder v. Holland, 208 Va. 15, 155 S.E.2d 369 (1967), Hudson would not be entitled to immunity for the alleged intentional tort.

2. The Court of Appeals observed that

there is no practical mechanism by which Virginia could prevent its guards from conducting personal vendettas against prisoners other than by punishing them after the fact. . . .

697 F.2d at 1223.

3. See n. 1, supra.

4. Petitioner maintains that the Court of Appeals' decision rests at least in part upon a finding of an independent right of privacy for prisoners under the Fourteenth Amendment alone. Arguably, it is not entirely clear whether the Court of Appeals believed that the limited privacy right it recognized was guaranteed solely by the Fourth Amendment, and applicable to the States only through the Fourteenth Amendment, or whether the right emanated from the Fourteenth Amendment alone, or both. The court's opinion, however, explicitly speaks to the "primary purpose of the Fourth and Fourteenth Amendments," 697 F.2d at 1224, and nowhere does it suggest an intention to draw a distinction between the Fourth and Fourteenth Amendment right of privacy in prison cells. Under the circumstances, we assume, since there is no suggestion to the contrary, that the court did not mean to imply in this context that any right of privacy that might exist under the Fourteenth Amendment alone exceeds that which exists under the Fourth Amendment.

5. The majority of the Courts of Appeals have held that a prisoner retains at least a minimal degree of Fourth Amendment protection in his cell. See United States v. Chamorro, 687 F.2d 1 (CA1 1982); United States v. Hinckley, 217 U.S.App.D.C. 262, 672 F.2d 115 (1982); United States v. Lilly, 576 F.2d 1240 (CA5 1978); United States v. Stumes, 549 F.2d 831 (CA8 1977); Bonner v. Coughlin, 517 F.2d 1311 (CA7 1975) (vacating District Court judgment), on rehearing, 545 F.2d 565 (1976) (en banc) (affirming District Court on other grounds), cert. denied, 435 U.S. 932 (1978). The Second and Ninth Circuits, however, have held that the Fourth Amendment does not apply in a prison cell. See Christman v. Skilmer, 468 F.2d 723 (CA2 1972); United States v. Hitchcock, 467 F.2d 1107 (CA9 1972), cert. denied, 410 U.S. 916 (1973).

6. In Lanza v. New York, 370 U.S. 139, 143-144 (1962), a plurality of the Court termed as "at best a novel argument" the assertion that a prison "is a place where [one] can claim constitutional immunity from search or seizure of his person, his papers, or his effects." This observation, however, was plainly dictum. In fact, three Members of the Court specifically dissented from what they characterized as the Court's "gratuitous exposition of several grave constitutional issues. . . ." Id. at 150 (BRENNAN, J., dissenting, joined by Warren, C.J., and Douglas, J.).

In upholding a room search rule against a Fourth Amendment challenge by pretrial detainees in Bell v. Wolfish, 441 U.S. 520 (1979), the Court acknowledged the plausibility of an argument that

a person confined in a detention facility has no reasonable expectation of privacy with respect to his room or cell, and that therefore the Fourth Amendment provides no protection for such a person.

Id. at 556-557. However, as in Lanza, it was unnecessary to reach the issue of the Fourth Amendment's general applicability in a prison cell. We simply assumed, arguendo, that a pretrial detainee retained at least a "diminished expectation of privacy." 441 U.S. at 557.

7. In Katz, Justice Harlan suggested that an expectation of privacy is "justifiable" if the person concerned has "exhibited an actual (subjective) expectation of privacy" and the expectation is one that "society is prepared to recognize as ‘reasonable.'" 389 U.S. at 360, 361 (concurring opinion). The Court has always emphasized the second of these two requirements. As JUSTICE WHITE said, writing for the plurality in United States v. White, 401 U.S. 745 (1971):

Our problem is not what the privacy expectations of particular defendants in particular situations may be, or the extent to which they may in fact have relied on the discretion of their companions. . . . Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally "justifiable." . . .

Id. at 751-752. In the same case, even Justice Harlan stressed the controlling importance of the second of these two requirements:

The analysis must, in my view, transcend the search for subjective expectations. . . . [W]e should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society.

United States v. White, supra, at 768, 786 (dissenting opinion).

The Court's refusal to adopt a test of "subjective expectation" is understandable; constitutional rights are generally not defined by the subjective intent of those asserting the rights. The problems inherent in such a standard are self-evident. See, e.g., Smith v. Maryland, 442 U.S. at 740-741, n. 5.

8. Respondent contends also that the destruction of his personal property constituted an unreasonable seizure of that property violative of the Fourth Amendment. Assuming that the Fourth Amendment protects against the destruction of property, in addition to its mere seizure, the same reasons that lead us to conclude that the Fourth Amendment's proscription against unreasonable searches is inapplicable in a prison cell apply with controlling force to seizures. Prison officials must be free to seize from cells any articles which, in their view, disserve legitimate institutional interests.

That the Fourth Amendment does not protect against seizures in a prison cell does not mean that an inmate's property can be destroyed with impunity. We note, for example, that, even apart from inmate grievance procedures, see n. 9, infra, respondent has adequate state remedies for the alleged destruction of his property. See discussion infra at 531-536.

9. The Commonwealth has a new inmate grievance procedure that was effective as of October 12, 1982, see n. 14, infra. But it appears that, at the time of the alleged deprivation of respondent's property, a very similar procedure was in effect that would also have afforded respondent relief for any destruction of his property. See Reply Brief for Petitioner and Cross-Respondent 13, n. 14.

10. In Four Circuits, including the Fourth Circuit in these cases, have held that Parratt extends to intentional deprivations of property. See Wolf-Lillie v. Sonquist, 699 F.2d 864 (CA7 1983); Engblom v. Carey, 677 F.2d 957 (CA2 1982); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (CA9 1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719 (1983). Three Circuits have held that it does not. Brewer v. Blackwell, 692 F.2d 387 (CA5 1982); Weiss v. Lehman, 676 F.2d 1320 (CA9 1982); Madun v. Thompson, 657 F.2d 868 (CA7 1981).

11. Nebraska had provided respondent with a tort remedy for his alleged property deprivation. Neb.Rev.Stat. § 81-8,209 et seq. (1976). We held that this remedy was entirely adequate to satisfy due process, even though we recognized that it might not provide respondent all the relief to which he might have been entitled under § 1983. 451 U.S. at 543-544.

12. In reaching our conclusion in Parratt, we expressly relied on then-judge Stevens' opinion for the Seventh Circuit in Bonner v. Coughlin, 517 F.2d 1311 (1975), modified en banc, 545 F.2d 565 (1976), cert. denied, 435 U.S. 932 (1978), holding that, where an individual has been negligently deprived of property by a state employee, the state's action is not complete unless or until the state fails to provide an adequate postdeprivation remedy for the property loss. 451 U.S. at 541-542.

13. In Logan, we examined a claim that the terms of an Illinois statute deprived the petitioner of an opportunity to pursue his employment discrimination claim. We specifically distinguished the case from Parratt by noting that

Parratt . . . was dealing with a . . . "random and unauthorized act by a state employee . . . , [and was] not a result of some established state procedure."

455 U.S. at 435-436 (quoting Parratt, 451 U.S. at 541). Parratt, we said, "was not designed to reach . . . a situation" where the deprivation is the result of an established state procedure. 455 U.S. at 436.

14. Our holding that an intentional deprivation of property does not give rise to a violation of the Due Process Clause if the state provides an adequate postdeprivation remedy was foreshadowed by our discussion of Ingraham v. Wright, 430 U.S. 651 (1977), in Parratt. We noted that our analysis was "quite consistent" with that in Ingraham, a case that, we observed, involved intentional conduct on behalf of state officials. 451 U.S. at 542.

15. It is noteworthy that the Commonwealth has enacted the State Tort Claims Act, Va.Code § 8.01-195.1 et seq. (Supp.1983), which, in defined circumstances, waives sovereign immunity. Additionally, as of October 12, 1982, the State has in place an inmate grievance procedure that received the certification of the Attorney General of the United States as in compliance with the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e. Although apparently neither of these avenues was open to this respondent, both are potential sources of relief for persons in respondent's position in the future.
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