opinion: Robert DAVIDSON v. Edward O’LONE, Superintendent, Arthur Jones, Hearing Officer, Joseph Cannon, Superintendent, and Robert James, Internal Affairs. Appeal of Joseph CANNON and Robert James.
  No. 82-5743.
  United States Court of Appeals, Third Circuit.
  Argued Dec. 1, 1983.
  Reargued In Banc May 7, 1984.
  Decided Dec. 27, 1984.
  Originally Argued Dec. 1, 1983.
  Before GIBBONS and SLOVITER, Circuit Judges, and GREEN, District Judge
  Reargued In Banc May 7, 1984.
  Before ALDISERT, Chief Judge, SEITZ, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges.
  Madeleine W. Mansier (argued), Deputy Atty. Gen., Irwin I. Kimmelman, Atty. Gen. of New Jersey, Trenton, N.J., for appellants Joseph Cannon and Robert James; James J. Ciancia, Asst. Atty. Gen., Trenton, N.J., of counsel.
  James D. Crawford (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
  Hon. Clifford Scott Green, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
  At the time of the reargument in banc, Judge Seitz was Chief Judge.
  . Both Judge Weis and Judge Garth join the majority opinion.
  OPINION OF THE COURT
  SLOVITER, Circuit Judge.
  The principal issue presented by this appeal is whether 42 U.S.C. § 1983 encompasses a claim for personal injury to a state prisoner based on the negligence of prison officials when New Jersey state law provides no remedy.
  I.
  Plaintiff Robert Davidson was an inmate at Leesburg State Prison when, on December 17, 1980, he intervened in a fight between two other inmates, Gibbs and McMillian. The three had disciplinary hearings on the morning of December 19, and immediately afterward McMillian threatened Davidson. Davidson returned to the hearing room to report the incident and, at the request of the guard on duty, wrote a note intended for Arthur Jones, the hearing officer. The note said:
  When I went back to the unit after seeing you McMillian was on the steps outside the unit. When I was going past him he told me ‘Til fuck you up you old mother-fucking fag.” Go up to your cell, I be right there.
  I ignored this and went to another person’s cell and thought about it. Then I figured I should tell you so “if” anything develops you would be aware.
  I’m quite content to let this matter drop but evidently McMillian isn’t.
  Thank you, R. Davidson.
  Dal4.
  Jones, to whom the note was addressed, was a civilian and not part of the prison administration. He told the guard, Jose Garcia, to pass the note to the proper officials. At 11:40 a.m. Garcia delivered it to Joseph Cannon, assistant superintendent of the prison. Cannon read it and told Garcia to give it to Corrections Sergeant Robert James. Cannon testified later that he did not regard the situation as urgent because Davidson, whom he had known for years, did not contact him directly, as he had previously done in various situations.
  Sergeant James was not in his office, and Garcia did not get the note to him until after 2:00 p.m. Garcia told him then that the note reported a threat by McMillian against Davidson. James attended to other matters, which he described as emergencies, leaving the note on his desk. At 4:00 he started a second shift, as Assistant Center Keeper, in another part of the prison. Between the time he received the note and the time he left the prison that night, James, spent only about 10 minutes in his office. He forgot about the note, which he had not read. James acknowledged that in such a situation he would ordinarily interview the inmates. Though he was not able to attend to the matter that day, he testified that if he had remembered the note he would have posted it at the Center to alert officers on the morning shift.
  Davidson, as the parties have stipulated, took no other steps to notify the authorities or request protective custody. He testified that he did not foresee the attack, but wrote the note to exonerate himself in the event that McMillian started another fight. Davidson also testified that he wanted officials to reprimand McMillian.
  Neither Cannon nor James worked on December 20 or 21. On December 21, McMillian attacked Davidson with a fork, inflicting wounds to his face, neck, head and body, and breaking his nose. Though the stab wounds healed within several weeks, Davidson has undergone surgery to correct problems stemming from his broken nose, suffering continuing pain and residual effects.
  Davidson was foreclosed from recovery from these defendants for his injuries under state law, for the New Jersey Tort Claims Act provides that “[njeither a public entity nor a public employee is liable for ... any injury caused by ... a prisoner to any other prisoner.” N.J.Stat.Ann. § 59:5-2(b)(4)(West 1982). The parties agree that as a result of this provision, Davidson has no state law claim for his injuries against the defendants or against the state.
  Davidson brought suit in the United States District Court for the District of New Jersey under 42 U.S.C. § 1983, naming as defendants Cannon, James, Jones, and Edward O’Lone, the prison superintendent. The court granted summary judgment in favor of O’Lone. The case against the other three was tried with Davidson appearing pro se. The court concluded that plaintiff did not establish an Eighth Amendment violation “because defendants did not act with deliberate ór callous indifference to plaintiff’s needs and because the incident complained of was a single attack.” Dal8. The court concluded, however, that Cannon and James, but not Jones, negligently failed to take reasonable steps to protect Davidson, that Davidson was injured as a result, and that their negligence deprived Davidson of a constitutionally protected liberty interest in freedom from assault while in prison. The court reasoned that because the New Jersey immunity provision denied Davidson a hearing, Davidson had been deprived of his liberty interest without due process. Davidson was awarded compensatory damages of $2,000.
  Defendants appeal, contending that the district court erred in concluding that they were negligent, that the court erred in concluding that an inmate such as Davidson in a state prison has a liberty interest in being protected by prison officials from a single assault by another inmate, and that the court erred in concluding that 42 U.S.C. § 1983 encompasses a claim arising out of a negligent failure by prison officials to protect an inmate against a single assault by another inmate. We will consider these contentions seriatim.
  II.
  After hearing all of the relevant evidence, the district court concluded, with respect to Cannon and James:
  We find that these two defendants negligently failed to take reasonable steps to protect plaintiff, and that he was injured as a result. Both of these officials had the responsibility to care for plaintiff’s safety, actual notice of the threat by an inmate with a known history of violence, and an opportunity to prevent harm to plaintiff.
  Dal8.
  Appellants concede that the applicable standard by which we must review the findings of the district court when sitting without a jury is the “clearly erroneous” standard contained in Rule 52(a) of the Federal Rules of Civil Procedure. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Appellants thus bear the heavy burden of convincing us that the district court determination either “is completely devoid of minimum evidentiary support displaying some hue of credibility,” or “bears no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972).
  The appropriate standard of care owed by prison custodians in New Jersey with respect to the risk of inmate injury was set forth in Harris v. State, 61 N.J. 585, 297 A.2d 561 (1972). As the court stated there, a prisoner is owed “a duty of due care while in custody” and further, “in appropriate circumstances [the prisoner] would be entitled to a recovery on a showing that a prison official negligently failed to discharge his responsibility for the [prisoner’s] care with resulting injuries to him.” Id. at 590, 297 A.2d at 563. The Harris court denied recovery because the defendants had received no warning of a danger to the plaintiff. In this case, the district court found that the defendants had “actual notice of the threat by an inmate with a known history of violence,” Dal8, which we find satisfies the Harris notice requirement. See also Restatement (Second) of Torts § 320 (1965).
  Appellants challenge the district court findings as clearly erroneous on several grounds. They contend that the district court erred in finding that they knew about McMillian’s past, that they failed to exercise reasonable care to protect Davidson, and that their failure to follow the prison procedures proximately caused the injury. However, while we agree that on this record there would be room for the trier of fact to have reached a different conclusion as to negligence, we cannot hold that there was no negligence as a matter of law nor that we are “left with the definite and firm conviction that a mistake has been committed” by the district court in reaching its findings. United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Thus we accept the determination that defendants were negligent in failing to take steps to prevent McMillian’s assault on Davidson.
  III.
  Appellants argue that the district court erred as a matter of law when it identified a “liberty interest” protected by the Due Process Clause to be free from physical attack and injury. Since § 1983, by its own terms, provides redress only when state employees infringe those rights “secured by the Constitution and laws” of the United States, see, e.g., Paul v. Davis, 424 U.S. 693, 700-01, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir.1973), plaintiff must satisfy this threshold requirement before we need reach the question whether simple negligence can give rise to § 1983 liability. See Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). We must, therefore, decide whether plaintiff as a state prisoner had a constitutionally protected “liberty interest” in security from physical assault by fellow prisoners.
  The constitutional right on which Davidson relies is that of his liberty interest in personal security protected by the Fourteenth Amendment. That the amendment covers such a basic personal right was affirmed by the Supreme Court in Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977), where it stated, “Among the historic liberties [protected by the due process clause] was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.”
  Davidson’s status as a prisoner does not deprive him of his right to rely on the Fourteenth Amendment. Because an inmate is not free to leave the confines which s/he is forced to share with other prisoners, the state bears the responsibility for the inmate’s safety. Undoubtedly, a similar responsibility stemming from the state’s control over the plaintiff underlay the Court’s finding of a liberty interest in Ingraham, where the plaintiff was in a public school, in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), where the plaintiff was an inmate of a state institution for the mentally retarded, and in City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983), where the plaintiff was injured while being apprehended by the police. The Supreme Court has “repeatedly held that prisons are not beyond the reach of the Constitution.” Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984). As it recently stated, “[W]e have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration.” Id.
  This court held in Curtis v. Everette, 489 F.2d 516, 518 (3rd Cir.1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974), that the Due Process Clause is a valid basis for a prisoner’s § 1983 action seeking relief for injuries inflicted by another prisoner. In Curtis, the allegations that defendant prison officials stopped the plaintiff prisoner from defending himself from an attack by another prisoner were held to implicate the plaintiff’s constitutional “right to be secure in his person” under the Fourteenth Amendment. Id.
  Appellants argue that the substantive due process right to personal security does not protect a state prisoner from an isolated attack by another prisoner. In so arguing, appellants have contracted into one issue what are in fact two separate issues, whether the liberty interest in bodily integrity protected by the Fourteenth Amendment covers the state’s failure to prevent attacks by other prisoners and the circumstances under which § 1983 provides a remedy for deprivation of that interest. Our focus in this section is directed only to the Fourteenth Amendment liberty interest.
  As to that, we find no Supreme Court precedent that would limit the protected liberty interest in freedom from attack to those attacks inflicted by the state officials themselves. Certainly it would be absurd to argue that a state prisoner does not have a liberty interest that would be infringed were his or her state custodian deliberately to open the prison door knowing that a lynch mob converged outside. The state infringement would be as direct as if the prison guard had tied the rope around the prisoner’s neck. The fact that there was only a single or isolated episode is irrelevant in determining whether a liberty interest was implicated.
  That such a liberty interest covers attacks committed by persons other than state custodians has been recently affirmed in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). Romeo, an involuntarily committed resident of a state institution for the mentally retarded, claimed in his § 1983 suit against administrators of the institution that his substantive right, inter alia, to safe conditions of confinement protected by the due process clause of the Fourteenth Amendment was violated because state officials were aware of and failed to take all reasonable steps to prevent his injury by other residents and by his own violence. The Court expressly recognized and reaffirmed the substantive liberty interest under the Fourteenth Amendment implicated by this claim. The Court stated:
  In the past, this Court has noted that the right to personal security constitutes a “historic liberty interest” protected substantively by the Due Process Clause. Ingraham v. Wright, 430 U.S. 651, 673 [97 S.Ct. 1401, 1413, 51 L.Ed.2d 711] (1977). And that right is not extinguished by lawful confinement, even for penal purposes. See Hutto v. Finney, 437 U.S. 678 [98 S.Ct. 2565, 57 L.Ed.2d 522] (1978).
  Id. at 315, 102 S.Ct. at 2458. Thus we reject appellants’ contention that Davidson had no interest protected by the Constitution.
  IV.
  The reasoning by which the district court concluded that Davidson was entitled to recover in this § 1983 action against Cannon and James is as follows: Cannon and Jones were negligent; as a result of that negligence, Davidson was injured; freedom from bodily injury is a liberty interest which is protected by the Fourteenth Amendment of the Constitution; New Jersey does not provide prisoners, such as Davidson, with a remedy in state court because it immunizes its employees against claims for injuries to a prisoner caused by another prisoner; ergo Davidson can recover under § 1983. We have noted our agreement with the district court’s reasoning up to the step at which it concluded that § 1983 liability extends to the negligent conduct of the prison officials in failing to investigate or take other action to protect Davidson. We turn now to that question, denominated as “elusive” by the Supreme Court. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).
  There are literally hundreds of cases in the Courts of Appeals in which various aspects of this issue have arisen and no clearly discernible thread has evolved. As the Supreme Court has recognized, “The diversity in approaches [among the various federal courts] is legion.” Parratt v. Taylor, 451 U.S. 527, 533, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). We begin, therefore, by examining the Supreme Court’s own treatment of the issue.
  Until the Court’s decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), there was little case law dealing with violations of § 1983 since most of the civil rights litigation against state officers before that time involved 18 U.S.C. § 242, the criminal counterpart to § 1983. In Monroe v. Pape, the Court held, inter alia, that because § 1983, unlike § 242, does not contain the word “willfully,” proof of “will-fullness” should not be required of a plaintiff seeking recovery under § 1983. The Court defined “willfully” as the doing of an act with “a specific intent to deprive a person of a federal right.” Id. at 187, 81 S.Ct. at 484. Justice Harlan, who concurred, addressed the relationship between the state action encompassed in § 1983 and that covered under ordinary state tort law. He stated that one must attribute “to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” Id. at 196, 81 S.Ct. at 488 (emphasis added).
  The language and some of the holdings of the subsequent Supreme Court cases considering this issue reflect the Court’s rejection of the notion that every state tort committed by a state officer acting under color of state law is ipso facto converted into a violation of § 1983. Thus, for example, in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Court held that a state prisoner subjected to medical malpractice does not automatically have a claim under § 1983. The Court stated, “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106, 97 S.Ct. at 292.
  In a case decided earlier that year, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court, speaking through Justice Rehnquist, held that a citizen defamed by police through circulation of a flyer of “active shoplifters” on which his name and photograph appeared did not state a claim for relief under § 1983 and the Fourteenth Amendment. The Court expressly rejected the premise that “the Due Process Clause of the Fourteenth Amendment and § 1983 make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state-law tort claims.” Id. at 699, 96 S.Ct. at 1159. Justice Rehnquist stated that such a premise “would be contrary to pronouncements in our cases on more than one occasion with respect to the scope of § 1983 and of the Fourteenth Amendment.” Id.
  The authority on which Justice Rehnquist relied was Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), where Justice Douglas had written for the plurality:
  Violation of local law does not necessarily mean that federal rights have been invaded. 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.
  Id. at 108-09, 65 S.Ct. at 1039, quoted in Paul v. Davis, 424 U.S. at 700, 96 S.Ct. at 1160. Justice Douglas’ opinion in Screws continued with the caution that Congress should not be understood to have attempted
  to make all torts of state officials federal crimes. It brought within [the criminal provision] only specified acts done ‘under color’ of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States.
  325 U.S. at 109, 65 S.Ct. at 1039, also quoted in Paul v. Davis, 424 U.S. at 700, 96 S.Ct. at 1160. Although Justice Douglas in Screws was construing the criminal analogue to § 1983, these passages of the Screws opinion were used as applicable authority by the majority in Paul v. Davis in its interpretation of § 1983. Indeed, Justice Rehnquist then proceeded to apply the analysis from Screws to reject the claim that defamation by the police fell within the scope of § 1983 and of the Fourteenth Amendment. Justice Rehnquist wrote:
  [Plaintiff] apparently believes that the Fourteenth Amendment’s Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the “constitutional shoals” that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102 [91 S.Ct. 1790, 1797-1798, 29 L.Ed.2d 338] (1971); a fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law.
  Paul v. Davis, 424 U.S. at 701, 96 S.Ct. at 1160.
  Shortly thereafter, in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), the Supreme Court appeared ready to decide directly the issue before us since it granted certiorari to consider “[w]hether negligent failure to mail certain of a prisoner’s outgoing letters states a cause of action under section 1983.” Id. at 559 n. 6, 98 S.Ct. at 858 n. 6. Because the Court decided that the defendants were entitled to prevail on the defense of qualified immunity as a matter of law, it did not reach the question on which certiorari was granted.
  Thereafter, in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), the Court again confronted this question. Again, the Court disposed of the case on other grounds since it held that no constitutional right was implicated because the defendant police officer charged with false imprisonment under § 1983 had acted on the basis of a valid arrest warrant. However, in his discussion concerning whether negligent conduct can form the basis of an award of damages under 42 U.S.C. § 1983, Justice Rehnquist, once more writing for the Court, stated:
  Having been around this track once before in Procunier, supra, we have come to the conclusion that the 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.
  Id. at 139-40, 99 S.Ct. at 2692.
  The duty upon which liability was sought to be predicated in Baker v. McCollan was closely akin to that Davidson relies on here. Plaintiff McCollan had been falsely imprisoned because his brother, the real culprit, had used plaintiffs driver’s license as his identification. The Court of Appeals held that plaintiff’s complaint stated a claim for relief under § 1983 because under tort law “the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name. See Restatement (2d) Torts § 125, comment (d) (1965).” McCollan v. Tate, 575 F.2d 509, 513 (5th Cir.1978). Thus in McCollan, as in this case, plaintiff’s claim was based on obligations under tort law of those state officials who have custody of prisoners.
  The Supreme Court, in reversing the Court of Appeals decision, rejected the contention that the duty imposed by tort law would be automatically transmuted into a duty protected by the Constitution. Justice Rehnquist stated:
  Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. Remedy for the latter type of injury must be sought in state court under traditional tort-law principles. Just as “[mjedical malpractice does not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U.S. 97, 106 [97 S.Ct. 285, 292, 50 L.Ed.2d 251] (1976), false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.
  Id. 443 U.S. at 146, 99 S.Ct. at 2695-2696.
  Thus, nothing in the Court’s cases through 1979 provides any support for the principle that negligent conduct by a state official causing injury to the person constitutes a deprivation of a Fourteenth Amendment right which can be redressed in a § 1983 suit. As authority for that position, the district court read the Supreme Court’s opinion in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), as holding “that a state official’s negligence is sufficient to constitute a ‘deprivation’ for due process purposes.” Da20. We turn to Parratt to determine if it supports the broad construction given it by the district court.
  In Parratt the plaintiff prisoner brought an action claiming that his now famous hobby materials valued at $23.50 were negligently lost by prison officials in violation of his right under the Fourteenth Amendment not to have his property taken without due process of law. Plaintiff’s claim was ultimately rejected by the Supreme Court, which held that because there were state remedies that could have fully compensated plaintiff for the property loss he suffered, the requirements of due process had been satisfied. 451 U.S. at 537-44, 101 S.Ct. at 1913-17. Recently, in Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court extended the Parratt holding to apply as well to certain intentional deprivations of a prisoner’s property. It stated,
  [W]e 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 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.
  Id. 104 S.Ct. at 3204. (emphasis added).
  The holdings of Parratt and Hudson that the available state postdeprivation remedies provide adequate procedural due process do not meet the substantive due process issue presented in this case. However, in Parratt, before reaching the procedural due process issue Justice Rehnquist, writing for the Court, considered the scope of § 1983, and wrote:
  Nothing in the language of § 1983 or its legislativé history limits the statute solely to intentional deprivations of constitutional rights. In Baker v. McCollan [443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d (1979)], 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 ____ 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. The Court recognized as much in Monroe v. Pape, 365 U.S. 167 [81 S.Ct. 473, 5 L.Ed.2d 492] (1961) ....
  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.
  451 U.S. at 534-35, 101 S.Ct. at 1912-13 (footnote omitted).
  Admittedly, this language standing alone is susceptible of the interpretation placed upon it by the district court that mere negligence can constitute a deprivation that can be redressed by a § 1983 action. However, in the context of the development of the law set forth above, we conclude Parratt does not so hold.
  Most significant is that in the two earlier cases also authored by Justice Rehnquist, Baker v. McCollan, decided only two years before Parratt, and Paul v. Davis, the Court vigorously rejected the suggestion that traditional torts became constitutional violations when committed by state officials. It is implausible that the Court would make a major pronouncement that constituted a 180 degree turnabout as to the scope of substantive due process or § 1983 without discussion or analysis. This is particularly so because early in the Parratt opinion the Court specifically noted that it had “twice granted certiorari in cases to decide whether mere negligence will support a claim for relief under § 1983,” 451 U.S. at 532, 101 S.Ct. at 1911 (citing Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) and Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)) and stated that “in each of those [the Court] found it unnecessary to decide the issue.” Id. Had the Court intended to finally decide the issue in Parratt that it had expressly left open previously, it is reasonable to expect that it would have done so affirmatively.
  Instead, what the Court did was reiterate the statements in Monroe v. Pape and Baker v. McCollan that § 1983 was not limited to intentional deprivation of constitutional rights. That proposition is not the obverse of one stating that § 1983 encompasses suits for negligence by state officials, because there is a broad range of actions between the two poles. Indeed, Justice Powell, concurring in the result in Parratt, observed that the Court “passe[d] over the threshold question — whether a negligent act by a state official ... constitutes a deprivation of property for due process purposes.” Id. 451 U.S. at 547, 101 S.Ct. at 1919. Thus, nothing in the Court’s opinion in Parratt leads us to conclude that the Court held that merely negligent conduct by state officers constitutes a constitutional deprivation encompassed by § 1983.
  Of course, the absence of any conclusive Supreme Court holding that requires us to construe § 1983 as encompassing all claims for negligence does not necessarily foreclose that interpretation. However, our own court’s opinions, as well as precedent from other circuits that we find persuasive, have concluded that negligence claims are not encompassed within § 1983. We reaffirm that conclusion, in large measure because of what we view as the purpose and essence of § 1983.
  The essential element of a § 1983 action is abuse by a state official of his or her official position. Monroe v. Pape, 365 U.S. at 172, 81 S.Ct. at 476. Justice Brennan has emphasized that “Section 1983 focuses 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.” Paul v. Davis, 424 U.S. at 717, 96 S.Ct. at 1168 (dissenting opinion) (emphasis in original) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)).
  In Kent v. Prasse, 385 F.2d 406 (3d Cir.1967) (approvingly discussed by Justice Powell in his separate opinion in Parratt, 451 U.S. at 550-51, 101 S.Ct. at 1920-21), we held that a tort committed by a state official acting under color of state law is not, in and of itself, sufficient to show an invasion of a person’s constitutional rights under § 1983. That position was reiterated in a subsequent series of cases. See Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir.1973); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir.1972); Nettles v. Rundle, 453 F.2d 889 (3d Cir.1971). As we said in Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir.1979), “Where a person suffers injury as an incidental and unintended consequence of official actions, the abuse of power contemplated in the due process and [eighth] amendment cases does not arise.”
  Various other courts since Parratt have also agreed that simple negligence does not suffice to state a claim under § 1983. See Hull v. City of Duncanville, 678 F.2d 582, 584 & n. 2 (5th Cir.1982) (construing Parratt ); Mills v. Smith, 656 F.2d 337, 340 n. 2 (8th Cir.1981) (per curiam) (construing Parratt). But see Howard v. Fortenberry, 723 F.2d 1206, 1209 n. 6 (5th Cir.1984); McKay v. Hammock, 730 F.2d 1367, 1373 (10th Cir.1984).
  A construction that § 1983 does not encompass negligence actions does not restrict its function as the primary vehicle to provide redress for unconstitutional action by state employees that violates the constitution. We eschew prescribing a comprehensive litmus test to determine which actions are or are not within § 1983, particularly since such a test has so far eluded the Supreme Court, but the pattern emerges from earlier cases.
  Application of force by police officers or prison guards exceeding that which is reasonable and necessary under the circumstances states a claim under § 1983. Black v. Stephens, 662 F.2d at 188; Howell v. Cataldi, 464 F.2d at 282; Martinez v. Rosado, 614 F.2d 829 (2d Cir.1980). Similarly, if the officials encouraged others to use excessive force, the officials would be liable. See Black v. Stephens, 662 F.2d at 189 (alternative basis for liability against police chief was policy of encouraging police officers to use excessive force).
  Liability under § 1983 may be imposed on prison officials even when the assault has been committed by another prisoner, if there was intentional conduct, deliberate or reckless indifference to the prisoner’s safety, or callous disregard on the part of prison officials. See Wade v. Haynes, 663 F.2d 778, 780-81 (8th Cir.1981), aff'd on other grounds sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (verdict sustained against correctional officers and the superintendent of the reformatory for placing the prisoner in a dangerous situation in which it was highly foreseeable that the assault would occur); Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir.1980) (prisoner assaulted by another prisoner entitled to an opportunity “to show purposeful acts on the part of the correction officers- or deliberate indifference to his safety amounting to a violation of due process.”) This is consistent with our holding in Curtis v. Everette, 489 F.2d at 518, that allegations by a prisoner of “intentional conduct” by prison officials who stopped him from defending himself when assaulted by another prisoner stated a § 1983 claim.
  Other cases provide examples of conduct beyond mere negligence that fall within the scope of § 1983. In Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir.1983), the court held that “the jury could have concluded that the jail was administered in a manner virtually indifferent to the safety of prisoners” and that under those facts, the defendants would be held to have violated the prisoners’ constitutional rights, whether expressed in Fifth or Eighth Amendment terms. Moreover, when officials with a responsibility to prevent harm, such as prison officials, fail to establish or execute appropriate procedures for preventing serious malfunctions in the administration of justice, such failure would support a claim under § 1983. See, e.g., Murray v. City of Chicago, 634 F.2d 365 (7th Cir.1980), cert. dismissed sub. nom. Finley v. Murray, 456 U.S. 604, 102 S.Ct. 2226, 72 L.Ed.2d 366 (1982). Similarly, a regulation issued by the Police Chief delaying disciplinary hearings against police officers until adjudication of the underlying arrest charges which caused officers to file unwarranted charges against plaintiff fell within § 1983, Black v. Stephens, 662 F.2d at 189-90.
  Another vital area in which § 1983 plays an effective role is in providing a federal forum to challenge an established state procedure that infringes upon an individual’s liberty or property interests, such as the Illinois procedure by which a claim could be terminated through no fault of the claimant declared invalid in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), or the New Jersey statute prohibiting prisoners from bringing tort actions against public entities or employees while confined struck down in Holman v. Hilton, 712 F.2d 854 (3d Cir.1983).
  We thus reaffirm that actions may be brought in federal court under § 1983 when there has been infringement of a liberty interest by intentional conduct, gross negligence or reckless indifference, or an established state procedure. The viability of such § 1983 actions does not depend on whether or not a postdeprivation remedy is available in state court. We do not read anything to the contrary in the holdings in Parratt and Hudson, which concerned a prisoner’s property right. It is untenable that the Court intended in those cases to subject all suits for unconstitutional acts under color of law, including those implicating a liberty or life interest, to a state remedy, if available. Such an interpretation would deprive § 1983 of its original remedial purpose to “aid [in] the preservation of human liberty and human rights”, see remarks of Representative Shellabarger during the Congressional debates surrounding the passage of the forerunner of § 1983, quoted in Owen v. City of Independence, 445 U.S. 622, 636, 100 S.Ct. 1398, 1408, 63 L.Ed.2d 673 (1980), and would reduce its scope to the rare instances where the state has foreclosed a remedy, as here. The Court has repeatedly declined to require exhaustion of state remedies for § 1983 actions. See Patsy v. Florida Board of Regents, 457 U.S. 496, 500, 102 S.Ct. 2557, 2559-60, 73 L.Ed.2d 172 (1982); Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505 (1974) (“When federal claims are premised on [§ 1983] we have not required exhaustion of state judicial or administrative remedies)”. We read Parratt and Hudson as decided in the context of prisoners’ interests in their personal property which were fully redressable by the available state remedies.
  In contrast, at issue here is a liberty interest. In determining whether behavior deprives the plaintiff of a substantive Fourteenth Amendment liberty interest, we must again focus on what constitutes due process. As the Supreme Court stated in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), the Due Process Clause imposes requirements of decency and fairness because they are “implicit in the concept of ordered liberty”. In Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), the Court described a violation of substantive rights under the Due Process Clause as "conduct that shocks the conscience.” Id. at 172, 72 S.Ct. at 209. The Court did not say whether anything less would suffice, and it declined to formulate a test: “Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend ‘a sense of justice.’ ” Id. at 173, 72 S.Ct. at 210.
  The conduct of the two prison officials here fails to rise to that level. Cannon followed the established procedure in directing Davidson to the proper officer, but he simply failed to follow up. James, who was operating under a double shift burden, merely forgot to investigate a prisoner’s note, which was ambiguous as to the nature of the threat, and conveyed no sense of urgency. When the only finding is that of mere negligence, as here, we cannot find the “outrageousness” or abuse of official power that warrants raising the tortious conduct of the prison official to the level of a deprivation of constitutional right within the scope of § 1983. Accord Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir.1982) (per curiam) (Eighth Amendment); Williams v. Kelley, 624 F.2d 695, 697-98 (5th Cir.1980) (Fourteenth Amendment), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981).
  In summary, we hold that § 1983 retains its central role in affording remedies for victims of constitutional deprivation, but that such a role does not extend to providing a remedy for the type of negligence found in this case.
  V.
  Davidson has suggested that his claim should be viewed as one of deprivation of procedural due process. His contention appears to be that when New Jersey enacted the statute foreclosing suit by a prisoner against either the state or a prison employee for injuries suffered by another prisoner, N.J.Stat.Ann. 59:5-2(b)(4) (West 1982), it violated his right to procedural due process. For a number of reasons we reject this claim.
  In the first place, plaintiff here, unlike the plaintiff in Holman v. Hilton, 712 F.2d 854 (3d Cir.1983), has not challenged the constitutionality of the statute. Plaintiffs claim, instead, is only for money damages from the defendants for the injuries inflicted by the assault.
  In the second place, a claim for procedural due process must be predicated on deprivation of a substantive right or interest created by the Constitution, a statute or other entitlement. Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Since we have rejected Davidson’s claim that his substantive right under the Fourteenth Amendment was deprived by defendants’ negligence, and there has been no claim of a statutory or other entitlement, there is nothing to trigger an inquiry into what process is due.
  In any event, nothing in the Constitution insures that a putative plaintiff may maintain a particular type of negligence claim in state court. The tradition of immunity was firmly rooted before the passage of § 1983. See Owen v. City of Independence, 445 U.S. 622, 637-38, 100 S.Ct. 1398, 1408-09, 63 L.Ed.2d 673 (1980). In Martinez v. California, 444 U.S. 277, 28183, 100 S.Ct. 553, 557-58, 62 L.Ed.2d 481 (1980), the Court rejected the claim that a state statute which foreclosed a tort suit established a federal constitutional violation. In sustaining the dismissal of a § 1983 action brought for death caused by a released parolee, the Court held constitutional a state statute similar to that here providing all public entities and public employees with immunity from liability for their action in releasing a parolee.
  Nor do we find any merit in plaintiff’s argument which seeks to distinguish between previously existing immunities and those recently created. As the Court stated in Logan v. Zimmerman Brush Co., 455 U.S. 422, 432, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982):
  the State remains free to create substantive defenses or immunities for use in adjudication — or to eliminate its statutorily created causes of action altogether— just as it can amend or terminate its welfare or employment programs,
  (emphasis supplied). The Court explained in Ferri v. Ackerman, 444 U.S. 193, 198, 100 S.Ct. 402, 406, 62 L.Ed.2d 355 (1979), “For when a state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law.” See Daniels v. Williams, 720 F.2d 792, 798 (4th Cir.1983).
  The implication of Davidson’s procedural due process claim is almost unlimited. It would subject to procedural due process scrutiny every state decision to immunize a public entity and employee from discrete claims, see, e.g., N.J.Stat.Ann. 59:4-6, (creating immunity from liability caused by the plan or design of public property). Davidson has provided no authority to support such a far reaching extension of procedural due process, and the available authority, as stated above, is to the contrary.
  VI.
  For the foregoing reasons we will reverse the judgment of the district court and direct entry of judgment for defendants.
  . This appeal was originally heard by a panel of this court and then reheard by the court in banc pursuant to Chapter IX.A. of the Internal Operating Procedures of this court.
  . Other courts have treated a prisoner’s § 1983 claim against prison officials for failure to protect against unjustified intrusions in personal security as raising an Eighth Amendment claim, see, e.g., Wade v. Haynes, 663 F.2d 778, 781 (8th Cir.1981), aff'd on other grounds sub nom. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980); Clappier v. Flynn, 605 F.2d 519 (10th Cir.1979); Parker v. McKeithen, 488 F.2d 553 (5th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). Nothing in these opinions, however, signifies rejection of such a claim premised upon the Fourteenth Amendment. In Holmes v. Goldin, 615 F.2d 83 (2d Cir.1980), the court accepted a claim predicated on both bases.
  . An enigmatic footnote in Baker v. McCollan, 443 U.S. 137, 140 n. 1, 99 S.Ct. 2689, 2692 n. 1, 61 L.Ed.2d 433 (1979), appears to distinguish between the question of defendant's state of mind as bearing on "whether a constitutional violation has occurred in the first place” and "whether § 1983 contains some additional qualification of that nature.” Subsequent commentary has drawn a substantive distinction between the two questions. See, e.g., S. Nahmod, Civil Rights & Civil Liberties Litigation § 3.02 (Supp. 1983). However, in earlier cases, the Court treated the scope of § 1983 and the Fourteenth Amendment correlatively. See, e.g., Paul v. Davis, 424 U.S. 693, 699, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976). For purposes of this case, the questions whether negligent conduct by state officials is a deprivation of Fourteenth Amendment rights and whether it can be redressed by suit under § 1983 appear to be mirror images of each other.
  . The academic commentary has also been distinguished by its diversity of opinion. See, e.g., Kirkpatrick, Defining a Constitutional Tort Under Section 1983: The State-Of-Mind Requirement, 46 U.Cin.L.Rev. 45 (1977); McClellan & Northcross, Remedies and Damages for Violation of Constitutional Rights, 18 Duq.L.Rev. 409 (1980); Whitman, Constitutional Torts, 79 Mich. L.Rev. 5 (1980); Note, Basis of Liability in a Section 1983 Suit: When is the State-Of-Mind Analysis Relevant?, 57 Ind.L.J. 459 (1982); Note, Section 1983 Liability for Negligence, 58 Neb.L. Rev. 271 (1978); Note, A Theory of Negligence for Constitutional Torts, 92 Yale L.J. 683 (1983).
  . The Civil Rights Acts of 1870 and 1871, codified today as 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986 were enacted to enforce the newly ratified Civil War Amendments in the hostile southern states. As Justice Harlan said in his dissent in the Civil Rights Cases, 109 U.S. 3, 44, 3 S.Ct. 18, 45, 27 L.Ed. 835 (1883), the pervading purpose of those amendments was to secure "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him” (quoting The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1872)). Section 1983 originated as § 1 of the Act of April 20, 1871, 17 Stat. 13, and "was passed by a Congress that had the Klan 'particularly in mind.’ ” Monroe v. Pape, 365 U.S. at 174, 81 S.Ct. at 477 (quoting Randall, The Civil War and Reconstruction, 857 (1937)). Referring frequently to a 600-page report documenting outrages against blacks that had gone unpunished, the 42d Congress sought a remedy "against those who representing a State in some capacity were unable or unwilling to enforce a state law.” Id. at 176, 81 S.Ct. at 478 (Court's emphasis).
  . As our analysis of Parratt shows, the statement in Holman v. Hilton, 712 F.2d 854 (3d Cir. 1983), reading Parratt as holding "as a general matter, that § 1983 affords a remedy for negligent deprivation of federally protected rights by persons acting under the color of state law,” id. at 856, is too broad. It was, in any event, unnecessary to the holding of the case that the established state procedure at issue violated due process.
  . Although in this case we deal with due process violations under the Fourteenth Amendment, the constitutional deprivation supporting § 1983 recoveries is not limited to that provision. See, e.g., Brule v. Southworth, 611 F.2d 406 (1st Cir.1979) (discharge for exercise of First Amendment rights); Tinetti v. Wittke, 620 F.2d 160 (7th Cir.1980) (strip search for traffic violation infringed Fourth Amendment).
  . Judges Weis and Garth do not believe that this case presents the issue of gross negligence and do not join in the reference to it.
  . Our holding avoids the anomalies that would result were a prisoner's § 1983 suit such as this under the Fourteenth Amendment to be judged under a lesser standard of care than the deliberate indifference standard applicable to a prisoner's Eighth Amendment claim, see Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), or were a prisoner to be entitled under the Constitution to a higher standard of care than an involuntarily committed mental patient, see Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
  Some members of this court believe that in circumstances such as those presented here, the Eighth Amendment standard is the same as that of the substantive due process clause of the Fourteenth Amendment, and that consistency demands that the Fourteenth Amendment not proscribe conduct the Eighth Amendment permits. See Williams v. Mussomelli, 722 F.2d 1130, 1132-34 (3d Cir.1983). See also Rhodes v. Robinson, 612 F.2d 766 (3d Cir.1979) (discussion of opinions applying similar standards in cases arising under the two amendments).
  However, other members of the court believe the standard for liability under § 1983 "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.” See Baker v. McCollan, 443 U.S. at 139-40, 99 S.Ct. at 2692. Because the district court in this case found that there was no Eighth Amendment violation, and no cross-appeal has been filed, the Eighth Amendment issue is not before us.
  . The New Jersey provision struck down in Holman v. Hilton, 712 F.2d 854 (3d Cir.1983), did not create a substantive defense but instead precluded a prisoner from asserting the cause of action to which s/he was entitled until the prisoner was released from prison. Id. at 857-58. That holding is not jeopardized by this opinion.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama