Holding that state law governs substantive issues and federal law governs procedural issues Erie R. Co. v. Tompkins 304 U.S. 64 (1938)

“The Due Process Clause, however, ‘does not transform every tort committed by a state actor into a constitutional violation.’ ” Id. (quoting DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).

“Government action resulting in bodily harm is not a substantive due process violation unless ‘the government action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’ ” Id. (some internal quotations omitted and quoting Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.2005) ).

Furthermore, because the Due Process Clause “is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security,” DeShaney, 489 U.S. at 195, 109 S.Ct. 998, “[o]nly an affirmative act can amount to a violation of substantive due process.” Lombardi, 485 F.3d at 79.

Substantive due process under article one, paragraph one of the New Jersey Constitution is “reserved for the most egregious governmental abuses against liberty or property rights, abuses that shock the conscience or otherwise offend judicial notions of fairness and that are offensive to human dignity.” Filgueiras v. Newark Public Schools, 426 N.J. Super. 449, 469 (App. Div.) (internal quotations, punctuation, and citation omitted), certif. denied, 212 N.J. 460 (2012). Salah v. Gilson DOCKET NO. A-3617-11T2 (N.J. Super. App. Div. Apr. 19, 2013).  Rather, substantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that “shock the conscience or otherwise offend . . . judicial notions of fairness. . . [and that are] offensive to human dignity.” Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989) (quotations omitted).”

El Badrawi has alleged that his detention was essentially arbitrary, which is sufficient to state a due process claim. See Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491; Kansas v. Hendricks, 521 U.S. 346, 356-57, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (explaining that arbitrary detention constitutes a substantive due process violation, although recognizing that civil detention can be constitutional when designed to further various legitimate social goals, such as protecting society from dangerous individuals). Because Manack and Loser acted unconstitutionally when they continued to detain El Badrawi, they did not have the discretion to take these actions, and Section 1252(a)(2)(B)(ii) does not block El Badrawi’s detention claim. Badrawi v. Department of Homeland Security 579 F. Supp. 2d 249 (D. Conn. 2008) 

Due Process Clause of the Fourteenth Amendment, such as the “right to be heard in an impartial forum,” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 161 (3d Cir. 2010), and the “right of access to the courts,” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). 16 Those rights “assure[] that no person will be denied the opportunity to present to the judiciary allegations concerning violations of . . . constitutional rights.” Wolff v. McDonnell, 418 U.S. 539, 579 (1974).