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February 25, 1985


The opinion of the court was delivered by: EDELSTEIN


EDELSTEIN, District Judge:

WHEREAS on March 14, 1984, plaintiff, then an inmate at the Federal Correctional Institute at Otisville, New York ("FCI"), commenced this action, pro se, pursuant to 42 U.S.C. § 1983, for damages and injunctive relief against five officials and employees of FCI; and

 WHEREAS on March 27, 1984, the court referred the case to Magistrate Michael H. Dolinger, pursuant to 28 U.S.C. § 636, to make findings and recommendations with respect to the complaint; and

 WHEREAS plaintiff is his complaint alleges that: (1) defendants on two occasions wrongfully denied plaintiff a furlough; (2) defendants wrongfully denied plaintiff an earned vacation; (3) beginning January 20, 1984, defendants denied plaintiff mailing privileges and repeatedly tampered with plaintiff's outgoing mail; (4) defendant Michael Pugh altered plaintiff's legal documents to deprive plaintiff of privileges to which he was otherwise entitled; (5) defendants harrassed plaintiff by removing a typewriter from his room and by searching his cell almost daily; and (6) the above actions were taken because of defendants' hostility towards plaintiff's religious beliefs; and

 WHEREAS defendants have moved for summary judgment or, in the alternative, to dismiss, and plaintiff has cross-moved for a preliminary injunction; and

 WHEREAS by Report and Recommendation dated January 15, 1985, the Magistrate recommended that plaintiff's claim based on the denial of furlough and vacation requests be dismissed because they do not state a constitutional claim; and

 WHEREAS the due process clause of the fourteenth amendment does not provide a liberty interest to prisoner furloughs and vacations, cf. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (no "constitutional or inherent" right to parole); Wolff v. McDonnel, 418 U.S. 539, 557, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) ("Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison"); and

 WHEREAS the regulations governing the grant of furloughs, 28 C.F.R. § 570.30 et seq., and vacations, 28 C.F.R. § 345, do not provide the type of discretion-limiting standards that would give an inmate a liberty interest, cf. Marciano v. Coughlin, 510 F. Supp. 1034, 1037 (E.D.N.Y. 1981) (no liberty interest created by New York furlough statute); Wright v. Cuyler, 517 F. Supp. 637, 641-42 (E.D. Pa. 1981) (no liberty interest created by Pennsylvania furlough statute; and

 WHEREAS the Magistrate recommended that plaintiff's claim based on defendants' denial of outgoing mail privileges be dismissed; and

 WHEREAS prison regulations that infringe on a prisoner's right to communicate with others by mail must "further an important or substantial government interest unrelated to the suppression of expression," and "be no greater than is necessary or essential to the protection of the particular government interest involved," Procunier v. Martinez, 416 U.S. 396, 413, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974); and

 WHEREAS the Magistrate found that based on the Martinez standard, plaintiff has stated a constitutional claim, because the defendants could have furthered the government's substantial interest by simply prohibiting plaintiff's correspondence with Ms. McGill, the woman he allegedly threatened; and

 WHEREAS the Magistrate recommended, however, that these claims be dismissed on the ground of defendants' qualified or good faith immunity; and

 WHEREAS the defense of qualified immunity is "available to prison officials as a defense form liability for damages for actions taken in their official capacities," Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 210 (2d Cir. 1984), provided the prison officials can show that "their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983); and

 WHEREAS the Magistrate found that because the defendants "operated in an area in which the law was not charted clearly," Carey, supra, 737 F.2d at 211, and relied on the prison rules and regulations in effect at the time, id., defendants are immune from damages under the Harlow standard, see Magistrate's Report at 28-30; and

 WHEREAS the Second Circuit recently has stated that the law in the area of prisoner's first amendment rights has undergone substantial revision, Heimerle v. Attorney General, No. 84-2037, at 1323 (2d Cir. Jan. 15, 1985), and has sought in a lengthy recent opinion to clarify the law relating to prisoners' first amendment rights, Wali v. Coughlin, No. 84-2387 (2d Cir. Feb. 5, 1985); and

 WHEREAS the Magistrate found, and the court agrees, that there are no material issues of fact with respect to the mailing restriction claim; and

 WHEREAS the Magistrate recommended that plaintiff's claim of mail tampering be dismissed because plaintiff has not, either in his complaint or in subsequent papers, stated in detail the factual basis of the claim; and

 WHEREAS plaintiff alleges that defendant Pugh altered a letter from the New York City Central Warrant Unit which reported that plaintiff's detainer had been vacated on April 26, 1984; and

 WHEREAS the Magistrate found this "conclusory allegation . . . entirely unsubstantiated and insufficient to avoid summary judgment"; and

 WHEREAS the plaintiff filed Objections to the Magistrate's Report, dated January 22, 23 and 27, 1985; and

 WHEREAS the court finds nothing in these objections that refutes the findings and recommendations of the Magistrate; and

 WHEREAS the Magistrate further recommended that plaintiff's motion for a preliminary injunction be denied as moot, because plaintiff was released from the FCI on August 30, 1984; and

 WHEREAS the Magistrate recommended that plaintiff's claims that defendants interfered with plaintiff's use of a typewriter and searched his room almost on a daily basis be dismissed for failure to state a constitutional claim; and

 WHEREAS the Magistrate recommended that plaintiff's remaining claims of religious-based harrassment be dismissed as impermissibly vague, and

 WHEREAS the court hereby adopts the Magistrate's findings and recommendations,

 IT IS HEREBY ORDERED that plaintiff's motion for a preliminary injunction is denied.

 IT IS HEREBY FURTHER ORDERED that defendants' motion for summary judgment is granted.

 IT IS HEREBY FURTHER ORDERED that the case is dismissed.


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