ATTACK: PROCEDURAL DUE PROCESS

MAIN RULE: The Due Process clause of the 5th and 14th Amendments of the United States Constitution requires that the
government give an individual notice and an opportunity to be heard before depriving that individual of his life, liberty, or
property.

#1- HAS THERE BEEN A DEPRIVATION?

I. Negligence on behalf of the government is generally not sufficient in order to create a deprivation for a claim under
Due Process
A. Daniels v. Williams→ Government negligence is insufficient to state a claim under the Due Process Clause
1. Deliberate indifference→ Way prisoners can show prison officials were more than negligent = sufficient to
state a claim
B. County of Sacramento v. Lewis→ A specific action by a state official violates due process when it is deliberate and
thus constitutes “arbitrary conduct shocking to the conscience” and violates the “decencies of civilized conduct”
C. What DOES shock the conscience→ Rochin v. California→ Law enforcement may not procure physical evidence
by forcible extraction of a defendant’s stomach contents. Such conduct shocks the conscience and violates the due
process clause of the Fourteenth Amendment.
II. Generally, the government’s failure to protect a person from privately inflicted harms does not constitute a
deprivation for a claim under Due Process
A. Deshaney v. Winnebago County Department of Social Services→ Under due process principles, there is no
affirmative duty of the state to act to protect individuals from deprivations of life, liberty, or property by other
citizens, unless those citizens are prisoners
B. Town of Castle Rock v. Gonzales→ Government has no duty to protect even if state law required police to enforce
restraining orders
C. BOTTOM LINE: Government generally has no duty to provide protection from private inflicted harms.
1. ONLY IF government literally creates the danger or a person is in government custody is there any
constitutional duty for the government to provide protections
III. To satisfy whether there has been a deprivation, there must have been intentional government conduct to deprive
someone of life, liberty, or property.

#2 - IS THE DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?

I. Rights-Privileges Distinction
A. Goldberg v. Kelly→ When a state seeks to terminate welfare benefits, procedural due process requires the state to
provide the recipient with a pre-termination hearing for the purpose of determining the validity of discontinuing
public assistance in order to protect the recipient against an erroneous termination of his benefits
1. “The fundamental requisite of due process of law is the opportunity to be heard. Hearing must be at a
meaningful time and in a meaningful manner”
2. Requires recipient to have timely/adequate notice detailing the reasons for proposed termination and an
effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and
evidence orally
B. Fair Hearing→ provides a full administrative review, need not take the form of judicial or quasi-judicial trial
II. Property Deprivation
A. Property interests are created by state law/policy/rule/understanding that secure certain benefits that support claims of
entitlement to those benefits
1. Board of Regents of State Colleges v. Roth→ The Fourteenth Amendment’s guarantee of procedural due
process applies to the deprivation of individual liberty and property interests by the state. Procedural due-
process protections apply to a person's property interest in a benefit if the person has a legitimate claim of
entitlement to the benefit and not merely an abstract need or desire for the benefit.
2. Generally a property interest is defined as a reasonable expectation to a continued receipt of a benefit
a) Need an independent source of entitlement (state law/policy/rule/understanding) to create the interest
III. Liberty Deprivations
 A. Traditionally, liberty deprivations involved freedom (involuntary commitments, prison time). But the court has
expanded liberty deprivations to include the right to be free from reputational stigmatization, right to an education, and
more.
B. Reputational Interests
1. Goss v. Lopez→ The Due Process Clause of the 14th Amendment requires a student facing suspension of 10
days or less to be provided notice of the charges against him, evidence, and an opportunity to rebut the
accusations
a) The state cannot constitutionally suspend students without fair procedures under the Due Process Clause
because suspension of students can negatively affect their good standing with other students and teachers,
as well as later opportunities for higher education and employment
b) Ohio state law providing an entitlement to education and compulsory attendance law was the independent
source of entitlement Π’s needed to create an interest/deprivation
2. Paul v. Davis→ A person’s reputation, on its own, is not a liberty or property interest sufficient to invoke
constitutional due process protections. These protections are only available where the government action
harming a person’s reputation also subjects that individual to some other type of disability, such as the loss
of employment.
a) Compared to Goss, the students potentially suffered loss of later opportunities, like higher education and
employment. This Π only suffered reputational harm.
C. Prisoners
1. History: Up until June 1995, a liberty interest for prisoners could be found either if the prison statutes and
regulations were written in mandatory language and created such an interest or if the interest was so important
that the Court would deem it to be part of liberty regardless of the content of the statutes or regulations
2. Sandin v. Conner→ A prison disciplinary procedure that does not impose an atypical and significant
hardship in relation to the ordinary incidents of prison life does not violate an inmate’s due process rights.
a) Needs to “shock the conscience”, solitary confinement doesn’t fall outside the ordinary practices of prison
life
b) What DOES shock the conscience→ Hope v. Pelzer→ A prison guard is not entitled to qualified
immunity if a reasonable guard would have known the guard’s action was unconstitutional.
(1) Qualified immunity protects prison guards from liability for official conduct that violates the
constitution unless a prison guard knowingly violates the law in light of legal rules that are clearly
established at the time.
(2) Whether qualified immunity exists depends on the objective reasonableness of the guard’s action.
This test asks if a reasonable prison guard could have thought that the action was lawful.

#3- IS THE DEPRIVATION WITHOUT DUE PROCESS OF LAW?

I. What Process is Due?
A. Matthews v. Eldridge→ Whether an administrative procedure meets the constitutional guarantees of the Due
Process Clause requires a consideration of three factors:
1. Identify private interest at risk
2. Identify procedures in place and what protections they provide
a) What is the probative value, if any, of additional procedural safeguards?
3. Balance with government interests (cost)
a) Including the function involved, and the $$ and administrative burdens that additional safeguards
would require
4. See where balance lies
a) If procedures do not provide notice and adequate opportunity to be heard, and there isn’t an
argument for government costs = deprived of due process
b) However, if like in Matthews, existing procedures provided notice and an opportunity to appeal =
not deprived of due process