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November 20, 1995

FRANK IRVIN, Superintendent of Wende Correctional Facility, LT. R. COOKS and M. BACH, Defendants.

The opinion of the court was delivered by: HECKMAN

 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment, in accordance with 28 U.S.C. § 636(c). Defendants Irvin and Bach have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure (Item 22). Plaintiff has also moved for summary judgment (Item 31). For the reasons that follow, both motions are denied.


 On September 30, 1994, plaintiff was an inmate at the Wende Correctional Facility, which is maintained by the New York State Department of Corrections ("DOCS"). He was confined to the B-Block housing unit. He was scheduled for a "callout" *fn1" on that day for an appointment with a clinician from the facility's Mental Health Unit (see Mental Health Unit memo, attached to Item 26). At approximately 1:30 p.m. on September 30, 1994, Corrections Officer Marc Bach advised plaintiff that he was scheduled for a mental health unit callout. Plaintiff told Bach that it was time for Friday "Jummah" *fn2" services. Bach then ordered plaintiff to return to his cell and "lock in" (Item 20, Ex. 1). The chronological log entries for September 30, 1994 indicate that at 1:35 p.m. plaintiff refused mental health callout (id., Ex. 5). At 1:42 p.m. eight inmates (not including plaintiff) were called out for Muslim services, and at 3:14 p.m. they were returned to their cells (id.).

 Officer Bach filed an inmate misbehavior report charging plaintiff with a violation of Rule 109.12 of the Institutional Rules of Conduct. *fn3" The misbehavior report, dated September 30, 1994, described the incident as follows:

[Plaintiff] was ordered to attend a mandatory mental health call-out. [He] refused to attend this call-out. I ordered [him] to return to his cell and lock in. [He] returned to his cell and locked in without further incident.

 (Item 20, Ex. 1). The report was reviewed by Lt. R. Cooks on October 1, 1994 (Item 27), and a copy of the report was delivered to plaintiff on October 2, 1994 (Item 20, Ex. 1).

 At plaintiff's Tier II disciplinary hearing on October 6, 1994, hearing officer Lt. Ireland dismissed the charge against plaintiff upon being advised by the Mental Health Unit that their callouts are not mandatory (id.).

 On October 24, 1994, plaintiff filed this action for damages under 42 U.S.C. § 1983. He claims that he was deprived of his right to attend Jummah services on September 30, 1994, in violation of the first amendment. The original complaint named Frank Irvin, Superintendent of Wende, as the only defendant. On April 24, 1995, this court recommended that the district court deny defendant Irvin's motion to dismiss the complaint, and granted plaintiff leave to amend his complaint to add Lt. Cooks and Officer Bach as defendants (Item 15). On May 17, 1995, Judge Skretny accepted this court's report and recommendation in its entirety (Item 18).

 Defendants now move for summary judgment. In response to defendants' motion, plaintiff filed his own motion for summary judgment. For the reasons that follow, the motions are denied.


 I. Summary Judgment.

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F. Supp. 858, 861 (S.D.N.Y. 1986).

 A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture ...

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