For at least two reasons the requirement of an entitlement for the existence of a due process liberty interest, instead of a finding of grievous loss, is the prescribed approach. First, a standard of grievous loss would measure the weight of the individual interest rather than determining its nature . . . Second, the requirement of an entitlement provides an appropriate basis for compromise between the need for the protection of individual interests and the need for government action unhampered by

procedural burdens. A standard of grievous loss would interfere more directly with government responsibilities.

558 F.2d at 1251.

The court noted that the Constitution did not grant inmates a liberty right not to be placed in a more restrictive living status, not to be transferred to maximum security penitentiaries for adult offenders, not to be subjected to significant and adverse effects on parole dates, and not to be deprived of privileges. Further, federal statutory law gave federal prison officials full discretion in the treatment of prisoners with respect to the matters in issue. 558 F.2d at 1252. However, the court found that policy statements issued by executive officers, here prison officials, could create liberty interests. The court further stated: "[L]iberty interests can be created by rules or mutually explicit understandings." 558 F.2d at 1255. The court found that although the plaintiffs did have liberty interests created by the policy statements, the interests were not as broad as those found by the district court.

Polizzi v. Sigler, 564 F.2d 792, 797-98 (8th Cir. 1977) found that classification of plaintiffs as "special" offenders upon their entrance into the federal prison system involved a deprivation of liberty and that they were entitled to due process hearings.

Another consideration in determining whether due process procedural protections are required is "the extent to which an individual will be 'condemned to suffer grievous loss. ' "Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972).171 Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 found that the denial of parole, as distinguished from the revocation of parole, is not a "grievous loss" and therefore due process procedures are not required.

Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L. Ed. 2d 424 (1972) held that actions may be brought under section 1983 for deprivation of property without due process of law. Compare Russell v. Bodner, 489 F.2d 280 (3d Cir. 1973), in which the court held that the value of property taken from a prisoner is not determinative of the federal court's jurisdiction in a Civil Rights Act case and reversed the district court's order dismissing a complaint alleging that the defendant security officer had taken seven packages of cigarettes from plaintiff's cell, with Nickens v. White, 536 F.2d 802 (8th Cir. 1976), in which the court sustained the dismissal of the complaint as to plaintiff's claim that he had been denied due process when a catalogue of office supplies had been confiscated by defendant prison officials. The court stated:

536 F.2d at 803. Bryan v. Werner, 516 F.2d 233 (3d Cir.

171. But see Walker v. Hughes, 558 F.2d 1247, 1251 (6th Cir. 1977), holding that the "grievous loss" inquiry cannot be substituted for the determination of whether the plaintiff has been deprived of a right to which he is entitled.

1975) stated:

We do not believe that an inmate's
expectation of keeping a particular
prison job amounts either to a
"property" or "liberty" interest
entitled to protection under the
due process clause. . . . Similarly,
since his discharge has not resulted
in an increased period of confinement
or in more restricted confinement,
his liberty has not been impaired.

516 F.2d at 240.

The plaintiff did not have a due process right to a hearing prior to his removal as an inmate counselor by prison officials in Altizer v. Paderick, 569 F.2d 812 (4th Cir. 1978), even though the prison officials included in his file the reasons for his removal which could have later implications on his right to parole. The court stated:

569 F.2d at 812. The question of whether the plaintiff has been denied procedural due process is not be to confused with the propriety of the final decision affecting him. The role of the federal courts is not to relitigate the proceeding in which the plaintiff alleges he was denied due process. For further discussion see Section VIII, K, 7, f infra.

2. Balancing the Interests

Although modern jurisprudence presses a myriad of "social interests" upon jurists for attention, the extent to which these interests can be balanced depends on the identification of all the interests. Judge Ruggero Aldisert has suggested that the expression "balancing interests," first so described by Justice Hugo Black, is useful, perhaps, but seriously misleading:

The expression implies that the subject
matter of the judicial process may be
precisely quantified. It may not. The
best that can be hoped is that all the
interests at stake in a given case are
identifiable. Having identified the
interests at stake, a judge can at least
consider them, but it is doubtful that
he is ever really able to "balance" them.
The judge's accomodation of the competing
interests his or her priority if you
will -- in resolving the interest-conflicts
will be durable and acceptable to the
extent that a reasoned accomodation of the
interests is regarded and accepted as fair.

172

This accomodation of competing interests in prisoner cases is discussed in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974):

Of course, as we have indicated,

the fact that prisoners retain rights
under the Due Process Clause in no way
implies that these rights are not
subject to restrictions imposed by
the nature of the regime to which
they have been lawfully committed.
In sum, there must be mutual

accommodation between institutional
needs and objectives and the provisions
of the Constitution that are of general
application.

172. Aldisert, Opinion Writers and Law Review Writers: Community and Continuity of Approach, 16 Duq. L.R. 139, 154 (1977-78).

A

418 U.S. at 556, 94 S. Ct. at 2975,,41 L. Ed. 2d at 951. The Court further stated:

We have often repeated that
"[t]he very nature of due process
negates any concept of inflexible
procedures universally applicable
to every imaginable situation.
[C]onsideration of what

procedures due process may require
under any given set of circumstances
must begin with a determination of
the precise nature of the govern-
ment function involved as well as
of the private interest that has
been affected by governmental
action.

418 U.S. at 560, 94 S. Ct. at 2977, 41 L. Ed. 2d at 953.

Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L. Ed. 2d 14 (1977) stated:

[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

431 U.S. at 848-49, 97 S.Ct. at 2112, 53 L. Ed. 2d at 38.

Although Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L. Ed. 2d 629 (1977) involved First Amendment and Fourteenth Amendment equal protection clause challenges to prison regulations, the balancing test it applied would appear applicable to due process analysis. First, it emphasized