Ben Kalka v. Kathleen Hawk,appellees

I believe this court has discretion to avoid deciding whether Kalka has “ ‘alleged the deprivation of an actual constitutional right,’ ” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)), for only one reason: this case is factually distinguishable from Wilson. As my colleagues observe, the constitutional question is one for which injunctive relief is potentially available, rendering inapplicable the Supreme Court’s rationale for *100departing from the principle that constitutional…