The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #20.
Currently before the Court is defendants' motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. #13. For the following reasons, defendants' motion is granted in part and denied in part.
Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983, alleging that while he was incarcerated at the Gowanda Correctional Facility ("Gowanda"), defendants subjected him to cruel and unusual punishment, racial discrimination and malicious prosecution and denied his constitutional right to due process, equal protection and free speech. Dkt. ##1 & 6. Upon review of both the complaint, amended complaint and documentation attached to the complaint, the Court discerns the following claims:
1. Plaintiff seeks injunctive, declaratory and monetary relief based upon correction officials' alleged refusal to permit plaintiff recreation in the yard based upon an alleged policy of considering plaintiff's time going to and from afternoon programs sufficient to satisfy regulations regarding inmate recreation. Plaintiff alleges that he had been denied access to the outdoors for 45 days as of the date of filing his complaint. Plaintiff identifies C.O. R. Nowicki as implementing this policy, and alleges that defendants Murray, Tarbell, Eagan and Goord condoned this policy. Dkt. #1, p.5; Dkt. #1-2, pp. 3-4.
2. Plaintiff seeks injunctive, declaratory and monetary relief based upon DOCS' alleged policy of compelling inmates to perform additional work assignments within their housing unit without compensation. Dkt. #1, p.5; Dkt. #1-2, pp.6-13.
3. Plaintiff seeks injunctive, declaratory and monetary relief based upon correction officials' disciplinary action for violation of rules which were allegedly not printed in the facility rule book provided to plaintiff upon his transfer to Gowanda. Specifically, plaintiff alleges that he received a Tier II violation for possessing a lighter and smoking outside of the designated area, to wit, the bathroom, even though the facility rule book authorizes smoking in the housing units, recreation areas and sleeping quarters. Plaintiff appealed the Tier II violation to Superintendent Murray. Dkt. #1, p.5; Dkt. #1-2, pp.13-22.
C.O. Nowicki issued another Inmate Misbehavior Report for smoking in the "O" Room on January 10, 2005. Dkt. #1, p.5; Dkt. #1-2, p.35.
Plaintiff also submits documentation of a Tier 1 violation issued upon Superintendent Murray's direction for failing to secure property and alleges that this violation was improper because he had only walked to the day room to get hot water from the hot pot and had not left the housing unit as set forth in the facility rule book. Dkt. #1, p.5; Dkt. #1-2, p.23.
4. Plaintiff seeks injunctive, declaratory and monetary relief based upon correction officials' determination of guilt with respect to a Tier III misbehavior report charging plaintiff with providing legal assistance to another inmate and providing false statements or information. Plaintiff asserts that he did not provide legal assistance to the inmate and that his correspondence with and drafting of legal documents for the inmate's mother did not violate facility rules. Dkt. #1, p.5; Dkt. #1-2, pp.24-31.
5. Plaintiff seeks injunctive, declaratory and monetary relief based upon C.O. Warnes' refusal to permit plaintiff to work as a law library clerk/paralegal, despite his qualification to do so and assignment to that position, allegedly because of racial discrimination. Plaintiff alleges that none of the law clerks supervised by C.O. Warnes were African American. Dkt. #1, p.5; Dkt. #1-2, pp.35-37; Dkt. #6, p.5.
Plaintiff was transferred from Gowanda prior to the filing of his amended complaint (Dkt. #6), and released from ...