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.
As limited by this Court's Decision and Order granting in part defendants' motion to dismiss, plaintiff's pro se complaint alleges the following causes of action pursuant to 42 U.S.C. § 1983
1. refusal to permit plaintiff to work as a law library clerk/paralegal, despite his qualification to do so and assignment to that position, because of racial discrimination against defendant Warnes; and
2. denial of outdoor recreation for a period of 45 days against defendants Murray, Nowicki and Tarbell.
Currently before the Court is plaintiff's motion for partial summary judgment (Dkt. #51), and defendants' motion for summary judgment. Dkt. #52. For the following reasons, plaintiff's motion is denied and defendants' motion is granted.
Plaintiff was assigned to the law library as a clerk by the Program Assignment Committee following his transfer to the Gowanda Correctional Facility in January of 2004. Dkt. #32-2, p.3 & Dkt. #53, pp.39-41. C.O. Tomas Warnes declares that the decision as to which inmates work as clerks in the Law Library is made by the Program Committee and that he had no role in that decision in his capacity as Law Library Supervisor. Dkt. #57, ¶ 6. Plaintiff concedes that defendant Warnes is not a member of the Program Assignment Committee. Dkt. #53, pp.39-40.
Approximately six months after his assignment to the Law Library, plaintiff got into an argument with a white clerk over misspellings and syntax in forms used by law clerks, causing an unidentified corrections officer who works when defendant Warnes was off to tell plaintiff to shut up. Dkt. #53, pp. 46-48. In response, plaintiff told the corrections officer, "No, you shut up." Dkt. #53, p.48. The unidentified corrections officer told plaintiff to leave the library and that "was the last time [plaintiff] worked as a paid clerk." Dkt. #53, p.48. At the time of his dismissal from the program as a clerk in the law library, plaintiff described the head clerk as "an older black gentleman" and identified the other 6-8 clerks as two white individuals and the rest Hispanic, including one black Hispanic. Dkt. #53, pp.50-51.
Plaintiff approached C.O. Warnes and asked why he was removed while the white inmate was allowed to remain as a clerk. Dkt. #53, p.49. C.O. Warnes informed plaintiff that he had been removed because he talked back to the corrections officer. Dkt. #53, p.49. Plaintiff returned to the Program Assignment Committee and was assigned another program, but was allowed to return to the Law Library as a volunteer clerk. Dkt. #53, p.50. Plaintiff asked the Program Assignment Committee to return him to the law library, but his request was denied. Dkt. #53, pp.52-53. Plaintiff testified that the Program Assignment Committee informed him that his request was denied because he "can be a troublemaker." Dkt. #53, p.53. C.O. Warnes declares that he had no role in plaintiff's removal as an inmate clerk at the Law Library. Dkt. #57, ¶ 8.
On November 22, 2004, plaintiff wrote a letter to the mother of another inmate advising that he was "preparing" the inmate's "defense against the Department of Home [sic] Security's efforts to remove him due to his criminal conviction for what the DHS describes as an 'aggravated felony.'" Dkt. #53, p.16. Plaintiff signed the letter as a "Paralegal/Attorney's Assistant." Dkt. #53, p.16. On December 20, 2004, C.O. Kozak inspected mail addressed to the inmate, discovered the legal work prepared by plaintiff and determined that although plaintiff had requested permission to assist other inmates with their legal matters, he had failed to do so with respect to this inmate. Dkt. #53, pp.9-14. Plaintiff was charged in a misbehavior report with providing unauthorized legal assistance to another inmate and making false, incomplete and/or misleading statements. Dkt. #53, p.7.
In his defense, plaintiff argued that the rule regarding inmates assisting inmates did not apply because he didn't assist the inmate, but simply requested the inmate's mother send in papers so that he could assess whether to assist the inmate. Dkt. #53, pp. 19-21. With respect to his identification as a "Paralegal/Attorney's Assistant," plaintiff noted that he is trained as a paralegal and worked in that capacity prior to his incarceration. Dkt. #32-2, pp.35-36 & Dkt. #53, p.21. The C.H.O. found plaintiff guilty of the charges and suspended plaintiff's recreation, package, commissary, and phone privileges for 45 days commencing January 5, 2005. Dkt. #53, p.28.
Gowanda is a medium security facility where inmates are housed in dormitories rather than cells. Dkt. #54, ¶ 15. Each housing unit at Gowanda consists of bunks for approximately 80 inmates along with a recreation room containing a television and tables for inmates to play cards or board games. Dkt. #54, ¶ 15. When inmates at Gowanda lose recreation privileges, they are forbidden to go into the recreation room, exercise yard or gym. Dkt. #54, ¶ 16. However, they continue to attend programs and ...