The opinion
GARTH, Circuit Judge,
concurring,
with whom WEIS, Circuit Judge, joins: 1
Although I have joined Judge Sloviter’s majority opinion, I write separately to express my view that even if mere negligence could constitute a deprivation of Davidson’s liberty interest (a proposition with which I do not agree) there is no requirement or reason that a remedy must be provided by 1983 in federal court. Stated differently, just because no remedy is available to Davidson under state law, it does not follow that some remedy must be made available somewhere — and that therefore the remedy in this case must be a constitutionalized remedy under 1983. I suggest that only an incomplete analysis can reach such a result and that if an appropriate procedural due process analysis is employed, 2 the result in this case will be no different than the result at which the majority opinion has arrived by distinguishing between property and liberty interests. In both circumstances, Davidson still cannot prevail over the State and its officials.
I.
If New Jersey, as it has here, provides immunity against Davidson’s claim, then an appropriate due process analysis should be concerned with whether the state’s interest in protecting its prison officials in such a situation outweighs Davidson’s interest in having available a monetary cause of action against prison officials for merely negligent conduct. The particular balance to be struck must measure the state’s interest in crafting its own tort laws and immunities against Davidson’s interest in having more extensive remedies than those afforded by state law. 3
In a similar context, the Supreme Court has written that “even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the state’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.” Martinez v. California, 444 U.S. 277, 282 , 100 S.Ct. 553, 557 , 62 L.Ed.2d 481 (1980). *832 In Martinez , the court held that a California statute, which granted absolute immunity to public employees responsible for parole-release decisions, was not an unconstitutional deprivation of due process when applied to defeat a tort claim arising under state law.
Nor should Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981) be read to constrain a state’s ability to establish its own substantive rules of law when such rules create no conflict with federal law. See Ferri v. Ackerman, 444 U.S. 193, 198 , 100 S.Ct. 402, 406 , 62 L.Ed.2d 355 (1979). In Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 , 102 S.Ct. 1148, 1156 , 71 L.Ed.2d 265 (1982), the court reiterated that “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.”
No authority has been called to my attention that supports the conclusion that a state’s immunity statute must ineluctably lead to a denial of due process such that section 1983 must be expanded to encompass negligence actions. The absence of a particular state remedy cannot, without more, require that a federal remedy be provided. 4 In terms of a procedural due process analysis, it then must be determined “what process is due” Davidson. The Fourth Circuit in Daniels v. Williams, 720 F.2d 792 (4th Cir.1983) held that a state may plead sovereign immunity as an affirmative defense. In that case the plaintiff would have received procedural due process when and even though the state’s affirmative defense was sustained. Here, even if we were to assume that the negligence of the defendants, Cannon and James, amounted to a “deprivation of liberty,” consideration must be given to the state’s strong interest in protecting its prison officials from liability.
Such decisions require an inherently delicate determination, a determination which would balance prison order and safety against an individual’s traditional desire to obtain a monetary response for injury suffered through a negligent act. Cf. Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982) (creating qualified immunity for public officials performing discretionary functions). Thus, in this instance, if the balance is struck in favor of the state as I suggest it must be, Davidson has had all the process which is his due. This being so, there is no requirement that Davidson be assured a cause of action against the state or the state’s officers for arguably negligent conduct, let alone a 1983 action in federal court. This does not mean, of course, that Davidson may not pursue any claim that he may have against McMillan, the prisoner who actually attacked him.
Accordingly, I suggest that those who advocate a federal constitutional remedy by default (where no state remedy is available) have failed to consider and to balance the state’s interest against the interest asserted by the claimant. In failing to do so, they have also failed to recognize that a state may afford appropriate due process without that process necessarily resulting in a recovery for the claimant. 5 See, e.g., *833 Daniels v. Williams, 720 F.2d 792 (4th Cir.1983). In this case, therefore, it is evident to me that whether the majority’s analysis is followed — an analysis and result which I believe to be wholly correct — or an appropriate due process analysis is developed — the conclusion we reach must necessarily be the same. Judgment must be entered for the defendants.
. As the majority opinion correctly states (Maj. Op. at page 830) a claim for procedural due process arises only after a deprivation of some substantive right or interest created by the Constitution, by statutes, or by 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). Because the majority of this court has rejected Davidson's claim that his substantive right under the Fourteenth Amendment was deprived by the defendants' negligence, the majority opinion had no occasion to consider a procedural due process analysis. I would not do so either were it not for the position taken by our colleagues, who are not in the majority that a procedural due process analysis would provide Davidson with a 1983 action in federal court and would thus lead to a result contrary to the result reached by the majority.
For purposes of this discussion, therefore, I will assume that mere negligence by state officials could constitute a deprivation of Davidson’s liberty interest. However, it does not follow from that assumption that the remedy must be provided in federal court pursuant to section 1983. To hold that negligent conduct by a state official serves to convert duties imposed by state tort law into substantive constitutional violations which lay the necessary predicate for a procedural due process inquiry is not a result compelled by Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981).
. There is analogous precedent for this type of balancing of interests where immunity has been upheld in a variety of circumstances. See Nixon v. Fitzgerald 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982) (President is absolutely immune from suit); Butz v. Economou, 438 U.S. 478, 513-14 , 98 S.Ct. 2894, 2914-15 , 57 L.Ed.2d 895 (1978) (Administrative Law Judge employed by Executive Branch absolutely immune from prosecution); Imbler v. Pachtman, 424 U.S. 409, 420-28 , 96 S.Ct. 984, 990-94 , 47 L.Ed.2d 128 (1976) (prosecutor absolutely immune from liability for decision to initiate prosecution); Pierson v. Ray, 386 U.S. 547, 553-55 , 87 S.Ct. 1213, 1217-18 , 18 L.Ed.2d 288 (1967) (state municipal judge absolutely immune from prosecution under section 1981).
. Were an absolute grant of immunity, precluding state tort suits, sufficient to establish a right to a federal remedy, a pedestrian negligently struck by a police car racing to apprehend a criminal, would be entitled to maintain a 1983 action in federal court if a state immunity statute shielded police from liability for negligent acts occurring in the course of duty. Yet, if the enactment of an immunity statute by a state is deemed to result in a federal remedy by default, not only would the state’s legitimate interest in fashioning rules of tort law be curtailed, but also state law would then determine the content of 1983 actions in federal court. This reasoning "would make the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701 , 96 S.Ct. 1155, 1160 , 47 L.Ed.2d 405 (1976). I suggest that to allow a federal constitutional remedy in the circumstances presented here is not only contrary to the purposes of section 1983 but necessarily trivializes 1983 actions.
. Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir.1984) is not to the contrary. Admittedly, Thibodeaux does not adopt the majority’s distinction between "liberty interests" and "proper *833 ty interests." However, in its procedural due process analysis, Thibodeaux affirmed the dismissal of the plaintiff’s negligence action remitting him to his state law remedies. Thibodeaux does not address or discuss what result would obtain if no remedy were available in the Louisiana state courts. Nothing in Thibodeaux indicates that in such a situation the Fifth Circuit would then hold that the plaintiff had stated a federal cause of action under 1983. To the contrary, throughout its opinion, Thibodeaux cites the Fourth Circuit case of Daniels v. WilHams, 720 F.2d 792 (4th Cir.1983) with approval. It should be remembered that Daniels did not remit the plaintiff to a federal cause of action when his state claim was barred by the doctrine of sovereign immunity.