III. Substantive Constitutional Right of Access to the Courts
In accordance with Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972), the plaintiff's pro se complaint may be liberally construed to allege that the defendants deprived him of his substantive due process right of access to the courts during the 23 days that he was detained in segregated confinement, insofar as the plaintiff asserts that, during this period, he was denied adequate access to the law library and to the assistance of law clerks. The Supreme Court has held that "prisoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (1977); see also Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987)
(A substantive constitutional violation occurs where a state official's deliberate misconduct has the effect of depriving an individual of his or her right of access to the courts.); Jones v. Smith, 784 F.2d 149, 151 (2d Cir. 1986) (Inmates were entitled to a hearing on their claim that prison mail policy violated their right of access to the courts.); cf. Taylor v. Coughlin, 29 F.3d 39, 40 (2d Cir. 1994) (per curiam) ("There is no constitutional right to a typewriter as an incident to the right of access to the courts.") (internal quotes omitted). Because the right of access to the courts is a substantive constitutional right, its vitality was unscathed by the Supreme Court's decision in Sandin. See Sandin, 115 S. Ct. at 2302 n.11.
The right of access to the courts embraces an inmate's rights to obtain adequate access to a law library, and to the assistance of persons trained in the law. See Bounds, 430 U.S. at 828, 97 S. Ct. at 1498. In the present case, however, in view of the relatively short period of time in which the plaintiff was kept in segregated confinement--23 days--any abridgment of this constitutional right was de minimis and therefore insufficient to sustain a cause of action. See Jones, 784 F.2d at 152 (affirming dismissal of right-of-access claim in light of short period of confinement to SHU--30 days--which the court regarded as de minimis). Further, in light of the Second Circuit's decision in Jones, any alleged right-of-access claim stemming from the plaintiff's segregated confinement would be overcome by a qualified immunity defense. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987); see, e.g., Curro v. Watson, 884 F. Supp. 708, 719-24 (E.D.N.Y. 1995) (dismissing on qualified immunity grounds substantive due process claim assailing deprivation of right of access to the courts), aff'd, No. 95-2327, 1996 U.S. App. LEXIS 2502, 1996 WL 19172 (2d Cir. Jan. 16, 1996). For these reasons, to the extent that the plaintiff's complaint may be construed to allege a right-of-access claim, such claim likewise must be dismissed.
For the foregoing reasons, the defendants' motion to dismiss the plaintiff's complaint is GRANTED and the complaint is dismissed in its entirety. This dismissal shall be without prejudice to file an amended complaint, consistent with the Court's analysis herein, within 60 days of the date that this Memorandum and Order is docketed.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
February 9, 1996