The opinion of the court was delivered by: DAVID N. HURD
United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
Plaintiff brought the instant civil rights action claiming that he was confined to Involuntary Protective Custody ("IPC") in retaliation for the exercise of his constitutional rights, and was denied his right of access to the courts when his typewriter was confiscated for a period of sixteen days. Specifically, he alleges that he was confined to IPC in retaliation for drafting and distributing forms to the inmate population for filing grievances pursuant to NY Correction Law § 114-A ("§ 114-A Forms"), and that as a result of his typewriter being confiscated, he missed a court deadline in his habeas corpus proceeding. Moreover, he alleges that his Fourteenth Amendment rights were violated when property, other than his typewriter, was either stolen or lost during transfer to IPC.
Defendants move to dismiss plaintiff's complaint on the grounds that: (1) plaintiff's due process rights were not violated during the IPC hearing conducted prior to confinement; (2) any allegations of retaliatory conduct by defendants are insufficient to state a claim under § 1983; (3) plaintiff's right of access to the courts was not infringed because there exists no constitutional right to a typewriter; (4) allegations of lost or stolen property do not rise to a Fourteenth Amendment violation; and (5) plaintiff has failed to allege personal involvement on behalf of Superintendent Leonardo. Plaintiff opposes defendants' motion.
While an inmate at Great Meadow Correctional Facility, plaintiff worked as a law clerk in the facility's law library. In the Summer of 1988, plaintiff and several other inmates devised a form to assist inmates in filing grievances and requesting a prompt written response from prison officials, the § 114-A Form. According to plaintiff, Leonardo became upset that these forms were being used by inmates, and directed that the § 114-A Forms be confiscated. Thereafter, the law library and all the law clerks and their property were searched and the forms were seized.
The Law Library was again searched on December 13, 1988, after plaintiff filed another § 114-A Form to complain about an incident involving a civilian employee at the mess hall. Plaintiff's typewriter was confiscated to determine if it conformed to prison regulations. During this search for additional § 144-A Forms, Fitzpatrick found a letter written by plaintiff to another inmate, Maximillian Amparo. The letter discussed payments made by plaintiff to Amparo as compensation for legal assistance, and also characterized Amparo's additional requests for money as "extortion." The letter then described an attempt by Amparo to start a fight with plaintiff over the money and anticipated that Amparo might try to harm plaintiff in the future. Plaintiff wrote that if Amparo did attempt anything, his business partner on the outside, as well as his lawyer, was aware of his extortion attempts. As a result of discovering this letter, plaintiff was placed in IPC that very day. Incident to the IPC confinement, plaintiff's property was packed by corrections officers and taken from his cell to IPC, although his typewriter was not returned to him until December 29, 1988.
The Supreme Court in Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), set forth the minimum requirements necessary to guarantee meaningful access to the courts. The Second Circuit has stated that the "intentional obstruction of a prisoner's access to the courts is precisely the sort of oppression that the Fourteenth Amendment and Section 1983 are intended to remedy." Franco v. Kelly, 854 F.2d 584, 588-89 (2d Cir. 1988) (quoting Morello v. James, 810 F.2d 344, 346-47 (2d Cir. 1987)). Therefore, paper, pens, notarial services, and stamps, as well as adequate library facilities, must be provided to inmates. Bounds, 430 U.S. at 824-825.
Where a claim of entitlement to a legal resource is asserted on such grounds, a two-tier inquiry is appropriate. Griffin v. Coughlin, 743 F. Supp. 1006, 1022 (N.D.N.Y. 1990). If the adequacy of the prison law library or access to alternative sources of legal knowledge are being challenged, the plaintiff need not allege actual injury. However, where an inmate alleges a denial of access on some other claim, i.e., that the actions of an individual prevented him from accessing the law library or meeting a court deadline, then the court must determine whether the prisoner has suffered an actual injury in a pending lawsuit. Id.
First, defendants correctly state that inmates have no constitutional right to the possession and use of a typewriter. Wolfish v. Levi, 573 F.2d 118, 129 (2d Cir. 1978), rev'd on other grounds, 441 U.S. 520 (1979); Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989). That is, since prisoners are not prejudiced by filing hand written briefs, the constitution does not afford inmates the right to a typewriter. Twyman v. Crisp, 584 F.2d 352, 358 (10th Cir. 1978). Plaintiff does not claim, however, that he has a constitutional right to the use of a typewriter in the preparation of his legal brief. His claim is more narrow. Plaintiff alleges that with just nine days before his reply brief was due to the court, Fitzpatrick confiscated his typewriter - knowing both that the reply brief was in the typewriter's memory, and that it was due in court in several days. Although plaintiff must show that he suffered injury from the actions of defendant, he need not, as defendants would have it, show that his petition was dismissed specifically because his typewriter was taken away or his brief was lost in the memory of his typewriter. Plaintiff's allegation that his reply brief, which happened to be contained in the typewriter's memory, was confiscated is no different than allegations that prison officials have confiscated a prisoner's other legal work product. Plaintiff must now show that he suffered some injury from defendant's actions.
At the time his typewriter was confiscated, plaintiff was preparing a brief in response to the answer to his habeas corpus petition.
The response was due in nine days. Plaintiff allegedly informed Fitzpatrick of this fact and requested that he be allowed to retrieve the reply brief from the typewriter before it was confiscated. Fitzpatrick refused. With the court deadline fastly approaching, and now confined to IPC, plaintiff alleges he was unable to re-research and write the reply brief again, and so he contacted his attorney and requested the attorney prepare a reply. His attorney agreed. However, plaintiff alleges that because the attorney included an unexhausted claim in his reply brief, a claim plaintiff alleges he would not have included, his petition was dismissed on the ground that it contained an unexhausted claim. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). Plaintiff, however, has failed to show that it was the actions of the defendant that caused his petition to be dismissed.
After Fitzpatrick confiscated his typewriter, plaintiff had the opportunity to rectify the situation. He was able to contact his attorney and request that a reply brief be prepared on his behalf. A timely brief was submitted. Therefore, it was the actions of his attorney that allegedly resulted in the petition being dismissed. Plaintiff has not submitted his proposed reply brief, nor has he shown that he was unable to receive an extension in time in which to file an amended reply brief. Moreover, his petition was dismissed without prejudice, giving plaintiff the opportunity to refile his petition without the unexhausted claim. There is no evidence, other than plaintiff's unsubstantiated allegation, that he would not have included the unexhausted claim in his reply brief.
Moreover, in the letter requesting that his attorney prepare the reply brief, plaintiff requests only that he "refute each and everything that the district attorney has mentioned in his answer." (Pltf's Aff. Opp. Summ. J., Ex. H) In fact, plaintiff, in his objections to Magistrate Judge Grubin's Report and Recommendation, wrote that his reply brief was only in response to respondent's supplemental memorandum of law which contained reference to the unexhausted claim, and that "any surplusage employed in a reply to Respondent's supplemental memorandum of law, ought not be deemed 'the new claim' by the court." (Def's Mot. Summ J., Ex. E at 4) It appears, then, that it was not plaintiff's attorney who raised the unexhausted claim, but the respondents ...