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BOOMER v. IRVIN

April 3, 1997

GREGORY BOOMER, Plaintiff,
v.
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 have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Item 37). For the following reasons, defendants motion is granted.

 BACKGROUND

 The factual and procedural background of this case has previously been set forth in this court's Report and Recommendation dated April 4, 1995 (Item 15, adopted May 17, 1995 (Item 18)), and Decision and Order dated November 20, 1995. Boomer v. Irvin, 919 F. Supp. 122 (W.D.N.Y. 1995). It will be restated here only as necessary to the determination of defendants' motion.

 On September 30, 1994, plaintiff was an inmate at the Wende Correctional Facility maintained by the New York State Department of Corrections ("NYSDOCS"). At approximately 1:30 p.m. on that day, Corrections Officer Marc Bach advised plaintiff that he was scheduled for a Mental Health Unit callout (see Mental Health Unit memo, attached to Item 26). Plaintiff told Bach that it was time for Friday "Jummah" *fn1" services. Bach then ordered plaintiff to return to his cell and "lock in" (Item 20, Ex. 1).

 On September 30, 1994, Bach filed an inmate misbehavior report charging plaintiff with a violation of Rule 109.12 of the Institutional Rules of Conduct. *fn2" The misbehavior report 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). At plaintiff's Tier II disciplinary hearing on October 6, 1994, hearing officer Lieutenant 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 free exercise clause of the First Amendment to the United States Constitution. The original complaint named Frank Irvin, Superintendent of Wende, as the only defendant. On April 24, 1995, by leave of court, the complaint was amended to add Officer Bach and Lieutenant Cooks (the officer who reviewed Bach's misbehavior report) as defendants (see Item 15).

 Defendants now move for summary judgment on the ground that plaintiff's keeplock confinement which caused him to miss Jummah services on September 30, 1994 did not result in a substantial burden on the exercise of his religious beliefs. For the reasons that follow, defendants' motion is granted.

 DISCUSSION

 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. ...


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