concurring.

While I join the Court’s disposition, I believe it is appropriate also to call the Court of Appeals’ attention to our decision in Neitzke v. Williams, 490 U. S. 319 (1989)—a case that it apparently overlooked when it entered its earlier judgment.

C. A. 8th Cir. [Certiorari granted, 494 U. S. 1055.] Motion of Alvin J. Bronstein, Esq., to withdraw as counsel for petitioner granted. Judgment vacated and case remanded for further consideration in light of the representations made by counsel for petitioner appointed by the Court in his motion to withdraw as counsel filed May 22, 1990, the response to that motion filed by respondent May 30, 1990, and petitioner’s motion for appointment of counsel filed June 4, 1990. Motion of petitioner for appointment of new counsel denied as moot.