Dissenting:
We have before us a § 1983 action seeking compensation for the violation of a petitioner inmate’s constitutional rights. A magistrate judge dismissed the case, and the majority affirms the dismissal on the grounds that respondents are entitled to qualified immunity. Respectfully, I dissent.
FACTS
A brief review of the facts will put this issue in clear perspective. In the early afternoon of December 13, 1984 petitioner, Willie Horne, allegedly asked a female volunteer teacher for “a little kiss on the cheek” while he was alone with her in the academic room of the Eastern Correctional Facility. The woman claimed this request frightened her, but she successfully escorted Horne out of the room without further incident. When she headed off to teach her Spanish class, Horne left the academic area. Petitioner is a functionally illiterate and mentally retarded person with an I.Q. of 65.
At a hearing, following the filing of a report of this incident, Horne was found guilty of violating prison rules against threats, encouraging sexual acts and verbal interference. He was sentenced to 365 days of solitary confinement. As a result of his mental disability he was unable to read the report filed against him. Nor was he given any form of assistance at his Tier III hearing, a hearing held in state prison for only the most serious infractions of prison rules.
Almost five months later, prison officials reversed the results of this hearing after conversations with the state Attorney General. At a rehearing, Horne was again found guilty of misconduct, but this time he ultimately received a sentence of six months of solitary confinement.
State Proceedings
Prior to the reversal of his first hearing, Horne filed an Article 78 proceeding in New York State Supreme Court. In December 1985 the state court ruled in Horne’s favor, annulling the disciplinary determination and expunging the prison hearing proceedings from his record. But by this time Horne had already served his six full months of solitary confinement in a Special Housing Unit (SHU) where he was confined 23 hours a day, fed through a slot in the door, and spent one hour each day alone in a small cage. In contrast, when he was previously among the general prison population, Horne had worked outside in the yard, attended school to learn the alphabet and freely visited the yard when not engaged in a program.
The New York Court apparently recognized that the effect of asking for a kiss when unaccompanied by any verbal or physical threat to the victim’s person — even in a prison setting — does not warrant six months of solitary confinement. The severity of Horne’s punishment seems more shocking than the nature of his offense.
DISCUSSION
A.
Horne’s due process claim does not fail on the ground that respondents are entitled to qualified immunity, as the majority holds. Instead, because respondents violated clearly established law they are not entitled to qualified immunity, and absent that defense, Horne’s due process claim must be considered on the merits.
The majority’s conclusion that the named prison officials are entitled to qualified immunity is predicated on the assumption that Horne suffered no harm as a result of the December 19, 1984 disciplinary hearing (the first hearing). The majority summarily dismisses the first hearing as a “nullity” because a prison official formally vacated the findings and penalties imposed at the first hearing. The following examination of the *33record, however, demonstrates that the first hearing, and specifically the process utilized at that hearing, remains relevant to an analysis of Horne’s due process claim.
B.
The timeliness of disciplinary hearings is governed by regulations found at N.Y. Comp. Codes R. & Regs. tit. 7, § 251D.1 (1983). Section 251D.l(a) provides, in relevant part
Where an inmate is confined pending a Disciplinary Hearing ..., the Hearing must be commenced as soon as is reasonably practicable following the inmate’s initial confinement pending said Disciplinary Hearing ..., but, in no event may it be commenced beyond seven (7) days of said confinement vñthout authorization of the Commissioner or his designee.
(emphasis added). After Horne was accused of violating prison rules on December 13, 1984 he was confined in SHU while awaiting his disciplinary hearing. The first hearing properly was held within seven days of the commencement of his confinement. Yet this hearing eventually was reversed and a rehearing conducted on May 9, 1985 (the second hearing), by which time Horne had remained continuously confined in isolation for almost five months.
The record does not show that either the Commissioner or his designee authorized the Department of Correctional Services to hold Horne beyond the seven days pre-hearing detention period. See N.Y. Comp.Codes R. & Regs. tit. 7, § 251D.l(a). Thus, once December 20 passed, we must accept either one of two possibilities explaining Horne’s subsequent detention: (1) his detention was administrative and the Department ignored § 251D.l(a)’s timeliness requirement by holding the second hearing 148 days after initially placing Horne in solitary confinement; or (2) his detention was punitive and Horne began to serve his sentence resulting from the first heáring.
C.
Nothing in the record would suggest the Department violated § 251D.l(a) and its timeliness requirement in such a grossly negligent manner; but, assuming it did, this Court could be obligated to proceed on the merits of Horne’s complaint. Such a prolonged administrative detention can form the basis of a § 1983 due process claim. The law clearly establishes that due process requires that an inmate confined to administrative segregation be afforded “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation.” Hewitt v. Helms, 459 U.S. 460, 476, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). Although the opportunity to be heard may be satisfied by “an informal, non-adversary review of the information supporting [the inmate’s] administrative confinement, including whatever statement [the inmate] wished to submit,” id. at 472, 103 S.Ct. 864, that opportunity must be provided within a reasonable time of the commencement of administrative segregation. See id., Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995).
If the first hearing truly is a “nullity,” then Horne had no opportunity to be heard prior to the second hearing. See Gittens v. LeFevre, 891 F.2d 38, 41 (2d Cir.1989) (“The sole opportunity to be heard on an inmate’s administrative confinement is at a disciplinary hearing, where the ultimate issue of guilt or innocence will be determined.”) (citing N.Y. Comp.Codes R. & Regs. tit. 7, §§ 253.1-253.9). While we have not yet fixed a precise time period within which a hearing on administrative confinement must be held, see Green v. Bauvi, 46 F.3d 189, 195 (2d Cir.1995); Russell v. Coughlin, 910 F.2d 75, 79 (2d Cir.1990), Horne’s 148-day confinement prior to the second hearing quite plainly exceeds all boundaries of reasonableness. See Russell, 910 F.2d at 79 (denying qualified immunity to prison officials for holding an inmate in SHU confinement for 10 days without a hearing in violation of New York’s seven-day rule). Hence, it could not be objectively reasonable for respondents to believe 148 days of administrative confinement, without an opportunity to be heard, respected petitioner’s Fourteenth Amendment due process rights. As a result, qualified immunity would not apply to the first alternative of an administrative detention.
*34D.
So we now turn to the second alternative explanation.1 The only logical explanation for Horne’s confinement following the first hearing until the date of the second hearing is that he was serving the sentence imposed on him as a result of the first hearing. Thus, while the second hearing is relevant to analyzing Horne’s due process claim arising from his SHU confinement subsequent to May 9, 1985, I believe we must examine the procedures followed at the first hearing when we consider Horne’s due process claim with respect to the 141 days of punitive confinement subsequent to December 19,1984. The majority correctly determines that the Due Process clause does not entitle an inmate in Horne’s position to “counsel substitute.” However, that conclusion does not end the inquiry because, unlike the procedure followed at the second hearing, Horne received no form of assistance whatever at the first hearing.
Decisional law and the state regulations at issue clearly establish that Horne, as a mentally retarded prisoner, was entitled to some form of assistance in defending a prison disciplinary proceeding, even though the nature of that assistance may not rise to the level of counsel substitute. In fact, it requires no citation to observe that the state serves as parens patriae for mentally retarded persons in its custody. Case law, however, clarifies that we as members of a civilized nation afford simple-minded people, whether prisoners or not, legal assistance when their liberty is threatened by a process they do not comprehend. See Vitek v. Jones, 445 U.S. 480, 496-97, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (“[W]e have recognized that prisoners who are illiterate and uneducated have a greater need for assistance in exercising their rights- A prisoner thought to be suffering from a mental disease or defect requiring involuntary treatment probably has an even greater need for legal assistance, for such a prisoner is more likely to be unable to understand or exercise his rights.”); Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (“Where an illiterate inmate is involved ... or where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.”); see also Hewitt, 459 U.S. at 466 n. 3, 103 S.Ct. 864 (“Wolff required that inmates facing disciplinary charges for misconduct be accorded ... the aid of a staff member or inmate in presenting a defense, provided the inmate is illiterate or the issues complex.”); Ron v. Wilkinson, 565 F.2d 1254, 1256-57 (2d Cir.1977) (recognizing a right to representation for certain inmates at disciplinary proceedings).
Even New York Department of Corrections regulations recognize as much. See N.Y. Comp.Codes R. & Regs. tit. 7, § 251C.1 (“An inmate shall have the opportunity to pick an employee from an established list of persons who shall assist the inmate when a Misbehavior Report has been issued against the inmate if ... the inmate is ... illiterate ... or the complexity of the issues make it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case.”). That the exact contours of the assistant’s role are unclear does not diminish the clarity of the right to some form of assistance. Nor can the limited assistance provided at the second hearing cure the absence of such assistance at the first hearing.
CONCLUSION
Accordingly, I would conclude that respondents violated clearly established law by failing to provide Horne with any assistance at the first hearing and therefore are not entitled to qualified immunity. As a consequence, I would proceed to a consideration of *35the merits of Horne’s § 1983 due process claim in light of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
. The majority agrees Horne's 148 days' confinement was punitive and not administrative. However, whereas I believe those days were served pursuant to the punishment imposed at the December 19, 1984 hearing, the majority attributes these 148 days to the punishment imposed at the May 9, 1985 hearing. I find the defendants’ attempt to rationalize Horne's confinement by holding a hearing after the relevant confinement already occurred unpersuasive.