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January 23, 1996


The opinion of the court was delivered by: RAMBO

 Before the court is Defendants' motion for summary judgment on the ground of qualified immunity. Briefs have been filed by both parties and the motion is ripe for disposition.

 I. Background

 Pursuant to 42 U.S.C. § 1983, Plaintiffs Carl A. Hoffman ("Hoffman") and Pennsylvania Institutional Health Services, Inc. ("PIHS") have filed this action alleging various violations of the Fourteenth Amendment to the United States Constitution. Defendants are four officials of the Pennsylvania Department of Corrections ("DOC") and one official of the Office of the State Inspector General ("OIG"): Joseph D. Lehman, Commissioner of DOC; Laurence J. Reid, Executive Deputy Commissioner of DOC; Cheryl G. Young, Chief Counsel to DOC; Jeffrey A. Beard, Superintendent of State Correctional Institution at Camp Hill ("SCI-Camp Hill"); and Richard Schulman, Deputy Inspector General.

 Hoffman is a doctor licensed to practice medicine by the Commonwealth of Pennsylvania. He is the President, Medical Director and sole stockholder of PIHS. PIHS is a professional corporation which provides institutional health care services to the inmate populations of various correctional institutions both inside and outside Pennsylvania.

 On July 29, 1992, DOC notified PIHS that its five contracts with the Commonwealth would be terminated. On August 5, 1992, DOC informed PIHS that it would be suspended from contracting with the Commonwealth for a period of three months. Pursuant to state administrative procedures, PIHS representatives were granted a hearing on September 23, 1992, to determine whether the suspension would be lifted or PIHS would be debarred from further contracting with the Commonwealth. Subsequent to the hearing, Hoffman and PIHS were debarred from contracting with the Commonwealth.

 Plaintiffs allege that during the course of events described above, Defendants were engaged in a conspiracy to terminate Plaintiffs' existing contracts with DOC, debar Plaintiffs from future contracting with the Commonwealth, and destroy Plaintiffs' business by depriving it of future commercial opportunities and undermining its business reputation. They claim that Defendants publicly, and falsely, blamed them for the death of inmate Powell in an effort to effect these goals and to evade their own responsibility for the death. (Complaint at 1-2; PP 102-157.)

 Plaintiffs filed the instant § 1983 action and asserted substantive and procedural due process claims and an equal protection claim under the Fourteenth Amendment. On February 16, 1995, this court granted Defendants' motion to dismiss the procedural due process claim and denied it as to the substantive due process and equal protection claims. On August 22, 1995, upon motion by Defendants and over the objection of Plaintiffs, the court stayed discovery pending disposition of the instant motion for summary judgment on qualified immunity grounds.

 II. Discussion

 Defendants' motion for summary judgment is before the court in a somewhat awkward posture. Defendants did not raise the qualified immunity defense in their motion to dismiss, and a substantial majority of their argument in support of summary judgment is that Plaintiffs' allegations, even if true, do not state a violation of clearly established law. Consequently, notwithstanding that this is a motion for summary judgment, this memorandum will be occupied primarily with determining whether Plaintiffs have alleged violations of clearly established law rather than with evaluating the parties' evidentiary submissions.

 Of course, where Plaintiffs have raised questions requiring application of the summary judgment standard, the motion will only be granted if there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Since discovery has been suspended, the court must determine whether Defendants have submitted evidence which precludes the possibility that Plaintiffs may establish an issue of material fact if permitted to complete discovery.

 A. Qualified Immunity

 The Third Circuit recently summarized the qualified immunity standards as follows:

Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. . . . For there to be liability, the right alleged to have been violated must have been 'clearly established' [in a particularized sense] . . . .

 In Re City of Philadelphia Litigation, 49 F.3d 945, 960-61 (3d Cir. 1995) (citations and internal quotations omitted). For a right to be clearly established in a 'particularized' sense there need not be precedent directly on point. Good v. Dauphin County Social Serv., 891 F.2d 1087, 1092 (3d Cir. 1989).

The ultimate issue is whether, despite the absence of a case applying established principles to the same facts, reasonable officials in the defendants' position at the relevant time could have believed, in light of what was in the decided case law, that their conduct would be lawful.

 Id.; accord In Re City of Philadelphia, 49 F.3d at 961.

 1. Substantive Due Process

 a. Have Plaintiffs Alleged A Violation Of Clearly Established Law?

 The court turns first to Plaintiffs' substantive due process claim. The Fourteenth Amendment provides that no person shall be deprived of "life, liberty, or property, without due process of law." This clause has been interpreted as giving rise to both "substantive" and "procedural" due process protection. In evaluating either type of claim, the court must first determine whether the interest assertedly violated is a liberty or property interest within the scope of the Fourteenth Amendment. See, e.g., Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) (procedural due process context); Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 222-223, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985) (substantive due process context); Mauriello v. Univ. of Medicine and Dentistry of New Jersey, 781 F.2d 46, 50 (3d Cir. 1986) (substantive due process context).

 For procedural due process purposes, a protected interest "may arise from two sources -- the Due Process Clause itself and the laws of the States." Hewitt, 459 U.S. at 466. However, the range of property interests sufficient to underwrite a substantive due process claim is more limited than in the procedural due process context. DeBlasio v. Zoning Board of Adjustment for the Township of West Amwell, 53 F.3d 592, 598-601 (3d Cir. 1995); Reich v. Beharry, 883 F.2d 239, 244 (3d Cir. 1989). The narrowest view of substantive due process interests, first articulated by Justice Powell in his concurrence in Ewing, 474 U.S. at 229, and recently adopted by the Eleventh Circuit in McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.), cert. denied, U.S. , 115 S. Ct. 898 (1995), is that only rights arising under the Constitution itself warrant substantive due process protection. While the Third Circuit has expressed some sympathy for this view, it has not been adopted. DeBlasio, 53 F.3d at 598-601; Reich, 883 F.2d at 244; Mauriello, 781 F.2d at 46. Most recently, the Circuit stated that although it has "yet to clearly define the category of property interests protected by the concept of substantive due process . . .," ownership of property is worthy of such protection. DeBlasio 53 F.3d at 599-600 (citing Bello v. Walker, 840 F.2d 1124 (3d Cir. 1988)). While the forgoing line of cases addressed property rather than liberty interests, the court believes that the principle that there are interests entitled to procedural but not substantive due process protection applies to liberty interests as well. See McKinney 20 F.3d at 1556-57 (discussing "substantive due process rights" without distinguishing between property and liberty interests).

 The court thus must determine whether, during the period in question, the interest allegedly violated by Defendants was 'clearly established' as a liberty or property interest deserving of substantive due process protection. The most important of Plaintiffs' allegations for present purposes are their claims that Defendants conspired to (1) suspend and then debar them from Commonwealth contracting for partisan reasons, and (2) destroy their ...

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