The opinion
SUNDBY, J.
(concurring). I concur in our mandate but not in the majority opinion.
Procedural due process requires adequate notice and an opportunity to be heard when the State proposes to take away a person's property or liberty. The State proposed to discipline Santiago for conduct violating prison regulations. The hearing officer, Todd Zangl, did not give Santiago a full due process hearing, which Santiago requested. However, the Sector Superintendent, Dennis A. Danner, recognized Zangl's error and ordered Daniel Benzer, a social services supervisor for the Division of Intensive Sanctions, to give Santiago a rehearing. Benzer gave Santiago a full due process hearing and found him not guilty of violating WCI's policies and practices, but guilty of disruptive conduct. Danner assigned Santiago an advocate who was allowed to call witnesses on Santiago's behalf and to present a defense.
Let's pause a moment to consider whose action the circuit court would have reviewed had Santiago pursued his certiorari remedy; not Zangl's, because whatever action he took was mooted when the conduct report was reheard. The court would have reviewed Benzer's finding that Santiago was guilty of disruptive conduct. How then is Zangl's and Danner's denial of Santiago's right to procedural due process implicated? There is no cause of action for an aborted denial of *344 procedural due process as long as the mistake is corrected before there is a loss of liberty. We are not presented here with a deprivation of a liberty interest which was final, subject to correction by judicial action; herb, the deprivation did not occur until after Santiago had been given all the process due him. I recognize that some federal circuits award damages for emotional distress caused by denial of procedural due process, see Laje v. Thomason Gen. Hosp., 665 F.2d 724, 728 (5th Cir. 1982). However, in those cases the liberty interest was lost only after failure to provide procedural due process.
Zangl may have denied Santiago adequate notice and an opportunity to be heard; Danner may have compounded Zangl's error but nothing came of it. Santiago did not lose a liberty interest because of their acts because someone in the Division had the good sense to realize the potential liability and order the institution to proceed properly. The real issue on this appeal is whether the initial denial of notice and an opportunity to be heard may be corrected without liability. The answer on that score has got to be "yes." If not, every procedural mistake becomes a constitutional violation complete when the mistake is made. It is fundamental, however, that denial of procedural due process is not complete unless and until the person affected loses a protected property or liberty interest. Santiago did not lose a liberty interest until after the conduct hearing before Benzer where he had adequate notice of the charges against him and a fair opportunity to defend against those charges.
Santiago argues that he was denied substantive as well as procedural due process. Substantive due process is the right to be protected against arbitrary and wrongful government action regardless of the *345 fairness of the procedures government uses to take the arbitrary action. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Santiago asserts that defendants deprived him of his liberty without even a "modicum" of evidence. See Superintendent v. Hill, 472 U.S. 445, 455 (1985); Santiago's claim is premature; until he has lost his liberty because of arbitrary and capricious governmental action he has not suffered a substantive due process deprivation. He has the right to appeal his potential loss of liberty by certiorari; the disciplinary action to which he may be subject may be set aside precisely because the evidence is insufficient. If the reviewing courts affirm Santiago's loss of liberty, he may then pursue his remedy under 42 U.S.C. § 1983 . The Civil Rights Act of 1871 created a federal tort because the freed slaves and Union sympathizers could not obtain relief in state courts. If Santiago's loss of liberty is affirmed by the Wisconsin courts, the federal courts are available to him to correct the constitutional wrong. However, the Wisconsin courts have not had an opportunity to review Santiago's conviction for violating prison regulations. Until that opportunity proves fruitless, Santiago has not lost his liberty because of arbitrary and capricious governmental action.
I therefore conclude that Santiago has not stated a claim under § 1983. For the same reasons, Santiago does not have a claim under state law. He simply has not been injured until his conviction and punishment have been affirmed. Conceivably, Santiago could state a claim if he alleged a conspiracy between the defendants to "frame" him and he could show that the charges against him were pretextual, masking an intent to prosecute him maliciously. I do not believe the *346 facts alleged in Santiago's complaint and proof support such a claim.
For these reasons, I do not join in the majority opinion. The reasons assigned by the majority for reaching the same result I reach are unnecessary to our decision.