Tafari v. Allen et al

Filing 18

MEMORANDUM-DECISION and ORDER - That the Clerk is directed to docket this Memorandum-Decision and Order in the following member cases: 9:11-cv-1342; 9:11-cv-1390; 9:11-cv-1422; 9:11-cv-1429; 9:1-cv-1446; 9:11-cv-1447; 9:11-cv-1464; 9:11-cv-1476; 9:12 -cv-269; 9:12-cv-662; and 9:12-cv-1062. That the consolidation orders (Dkt. Nos. 62, 64) are RESCINDED. That the stay is lifted in each of the consolidated cases. That Tafari's motions to amend his Complaints (Dkt. No. 50, 11-cv-694; Dkt. No. 11, 11-cv-1342; Dkt. No. 9, 11-cv-1422; Dkt. No. 10, 12-cv-269; Dkt. No. 7, 12-cv-662) are GRANTED and his Amended Complaints are deemed filed immediately. That the Clerk is directed to terminate the pending R&R in 12-cv-269 (Dkt. No. 8) as it is m oot. That Tafari's motions for leave to amend his Complaints (Dkt No. 107, 117) are DENIED. That Tafari's requests for an extension of time to further supplement the record (Dkt. Nos. 112, 113, 116) are DENIED. That pursuant to 28 U.S.C. §1915(g), Tafari's IFP status is REVOKED in 11-cv-694, 11-cv-1390, 11-cv-1446, 11-cv-1429, 11-cv-1447, 11-cv-1464, 11-cv-1476. That, pursuant to 28 U.S.C. § 1915(g), Tafari's motions to proceed IFP are DENIED in 11-cv-1342(Dkt. Nos. 2, 5); 11-cv-1422 (Dkt. No. 2); 12-cv-269 (Dkt. No. 2); 12-cv-662 (Dkt. No. 2); 12-cv-1062 (Dkt. No. 2). That unless Tafari pays the $350.00 filing fee in each of the twelve cases, within thirty (30) days of the date of this Memorandum-Dec ision Order, that case will be DISMISSED. That if Tafari fails to pay the $350.00 filing fee in a particular case, the Clerk, without further order of the court, shall enter judgment for defendants and close that case. ( Notice of Compliance Deadline 11/30/2012, Case Review Deadline 12/7/2012). Signed by Chief Judge Gary L. Sharpe on 10/31/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
INJAH TAFARI,
Plaintiff,

9:11-cv-6941
(GLS/ATB)

v.
HEATH BAKER et al.,
Defendants.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Frederick Rench, PLLC
646 Plank Road
Suite 204
Clifton Park, NY 12065

FREDERICK RENCH, ESQ.2

InJah Tafari
Pro Se
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
FOR THE DEFENDANTS:
1

The Clerk is directed to docket this Memorandum-Decision and Order in the following
member cases: 9:11-cv-1342; 9:11-cv-1390; 9:11-cv-1422; 9:11-cv-1429; 9:11-cv-1446; 9:11cv-1447; 9:11-cv-1464; 9:11-cv-1476; 9:12-cv-269; 9:12-cv-662; and 9:12-cv-1062. However,
unless otherwise noted, all docket citations refer to the lead case, 9:11-cv-694. Moreover, the
court hereby rescinds its consolidation order and lifts the stay in each of the consolidated
cases.
2

By Order dated July 30, 2012, Magistrate Judge Andrew T. Baxter appointed
Frederick Rench to represent Mr. Tafari at the evidentiary hearing before this court. (See Dkt.
No. 74.) Throughout the process, and particularly at the hearing, Mr. Rench provided zealous,
exemplary advocacy on behalf of his client. His willingness to do so provided an invaluable
service to his client, and to the court. The court thanks Mr. Rench for his service.

HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany Office
The Capitol
Albany, NY 12224

ADELE M. TAYLOR-SCOTT
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff InJah Tafari commenced these twelve consolidated cases
pro se under 42 U.S.C. § 1983 against defendants,3 all agents of the New
York State Department of Corrections and Community Supervision
(DOCCS), alleging violations of his constitutional rights. (See, e.g., Am.
Compl., Dkt. No. 15.) Because of, inter alia, the imprecision of Tafari’s
allegations of imminent danger, which he apparently included in order to
avoid paying the statutory filing fees, the court scheduled an evidentiary
hearing to determine whether his claims were credible. (See Dkt. No. 63 at
3

Heath Baker, Richard Adams, Amber Lashway, Michael Lira, Gerard Otis, David
Rock, John Sherhan, Dr. Carl Koenigsmann, Lucien Leclaire, Brian Fishcer, Donald Quinn,
Theodore Zerniack, Matthew Ranieri, Jerry Herbert, David Bilow, Lawrence Hopkinson, Julia
Gordon, Albert Prack, Jason Ferrick, Brian Bush, Matthew Welch, Donald Uhler, Diana Mullen,
William Allen, Steven Racette, Dale Artus, Richard Roy, Keven Smith, R. Murphy, Maureen
Bosco, C.O. Smith, C.O. Kemp, C.O. Wright, Kalyana Battu, Joseph Bellnier, Michael
Sheahan, William Chase, Roy Hastings, Donald Wood, Stanley Tulip, Martha Sturgen, Jason
Rushlaw, Geraldine Wilson, Scott Santamore, Kevin Premo, Nathan Bateman, Trudy Boyea,
Darin Cook, Craig Mainville, Bruce Bogett, William Hungerford, Candy Atkinson, Thomas
Quinn, Brad Reif, Paul Gokey, Timothy Ramsell and George Waterson.

2

4-5.) For the reasons articulated below, the court, having considered the
documentary and video evidence, testimony of the witnesses at the
hearing, supplementary submissions and the record as a whole, finds that
Tafari’s claims of imminent danger of serious physical injury are incredible.
It follows that unless he pays the statutory filing fee in each of his cases,
they will be dismissed.
II. Background
A.

Allegations of Imminent Danger4
In addition to the specific allegations of wrongdoing in each case, the

majority of Tafari’s Complaints contain a section entitled “Imminent Danger
of Serious Physical Injury,” in which he claims that he was assaulted by
“Upstate Staff” on the following dates: April 20 and 24, 2009, February 18,
2010, July 23, 2010, December 21, 2010, January 12, 2011, March 31,
2011, July 26, 2011, February 15, 2012, and May 5, 2012. (See, e.g., Am.
Compl. ¶ 13, Dkt. No. 10, Attach. 1, 12-cv-269.)

4

Because the inquiry is narrow here, the court confines it recitation of Tafari’s
allegations to those that, if substantiated, would presumably demonstrate that Tafari was in
imminent danger of serious physical injury at the time he filed his Complaints. It follows that
the allegations are drawn from each of Tafari’s Complaints and presented in a light most
favorable to him. And, even though Tafari is an experienced litigant in federal court, the court
nonetheless construes his pro se Complaints liberally. See Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006).

3

1.

11-cv-694: Tafari v. Baker et al.5

In retaliation for filing lawsuits against her, Nurse Practitioner
Lashway told Nurse Baker and Dr. Adams to “discontinue” the medical
treatments Tafari needs for his stomach condition, receding gum lines,
photophobia vision, bowenoid papulosis, Raynaud’s Disease, and various
ailments in his shoulder, thumb and lower back. (See 2d Am. Compl. ¶¶ 8,
16, Dkt. No. 50, Attach. 1.) Nurse Baker reiterated this threat, and by
February 10, 2011, all of Tafari’s treatments were discontinued. (See id. ¶¶
9-10.) Despite filing 250-plus complaints about the denial of medical
treatment, commissioners Fischer and Koenigsmann refused to “get[]
involved.” (Id. ¶ 15.) Finally, Tafari alleges that Nurse Baker wrote false
misbehavior reports, physically assaulted him on July 23, 2010, April 17,
2011 and September 2, 2011, and threatened him with physical harm on
the following dates: November 13, 20 and 27, 2011; December 4, 18 and
25, 2011; and January 8 and 22, 2012. (See id. ¶¶ 18-22.)
2.

11-cv-1342: Tafari v. Rock et al.6

5

On April 10, 2012, Tafari filed a motion to amend his Complaint for a second time.
(See Dkt. No. 50.) Because the Second Amended Complaint purportedly demonstrates a
pattern of imminent danger, the motion is granted. (See id. at 2.)
6

On May 17, 2012, Tafari filed a motion to amend his Complaint. (See Dkt. No. 11,
11-cv-1342.) For the reasons stated above, (see supra note 5), the motion is granted.

4

Tafari contends that on December 12 and 26, 2009, January 8, 2010
and February 6, 2010, Officer Bilow threatened him. (See Am. Compl. ¶¶
8-13, Dkt. No. 11, Attach. 1, 11-cv-1342.) Although Tafari reported each of
these threats, Captain Zerniak, along with Deputy Superintendent Otis and
Superintendent Rock, refused to protect him. (See id.) Furthermore, on
February 18, 2010, officers Bilow, Hopkinson and Herbert assaulted him
while he was restrained in a van on the way to Ulster County Supreme
Court. (See id. ¶¶ 14-17.) As a result of the assault, Tafari suffered
injuries to the head, face, chest, and arms. (See id. ¶ 17.) When the van
returned to Upstate, Tafari was taken to the infirmary and photographed
with a mask on, but was not initially treated by either Deputy
Superintendent Otis or Nurse Gordon, both of whom observed his injuries.
(See id. ¶¶ 18-20.) However, five days later, Tafari received treatment for
a broken nose, broken ribs, black eyes, and lacerations of the head, face,
chest, stomach, arms, legs and shoulders. (See id. ¶ 21.) Moreover,
Tafari avers that Officer Bilow threatened him on July 27, 2010 and
January 1, 2011. (See id. ¶¶ 26-27.)
3.

11-cv-1390: Tafari v. Uhler et al.

On March 31, 2009, Deputy Superintendent of Safety and Security
5

Donald Uhler instructed Upstate staff to beat Tafari in retaliation for filing
lawsuits against him. (Compl. ¶ 4, Dkt. No. 1, 11-cv-1390.) Furthermore,
on April 24, 2009, Tafari was escorted to the back of the infirmary, where
Sergeant Hungerford watched while officers Tulip, Cook, Bogett, Mainville
and Reit punched him in the back of the head and beat him. (See id. ¶¶ 57.) Thereafter, Officer Atkinson, who admitted to watching the assault,
returned Tafari to his cell, denied him medical treatment for his injuries and
told him to drop the lawsuit against Deputy Uhler. (See id. ¶¶ 8-9.)
Moreover, that same day, Lieutenant Quinn placed Tafari on a restricted
diet for seven days, apparently as a consequence of the beating, and told
him that the restriction would continue “for a very long time” unless he
dropped his lawsuit against Deputy Uhler. (Id. ¶ 10.) Finally, Tafari avers
that Deputy Uhler threatened him on November 21, 2011.7 (See id. ¶ 12.)
4.

11-cv-1422: Tafari v. Uhler et al.8

After being transferred to another cell at the behest of Deputy Uhler,
Tafari was gang assaulted by several officers, including Santamore, Premo

7

Tafari repeats this identical allegation in several of his subsequent Complaints. (See,
e.g., Compl. ¶ 10, Dkt. No. 1, 11-cv-1422.) In the interest of brevity, it will not be repeated in
each case summary.
8

On May 18, 2012, Tafari filed a motion to amend his Complaint. (See Dkt. No. 9, 11cv-1422.) For the reasons stated above, (see supra note 5), the motion is granted.

6

and Bateman—who was also “using racial slurs” during the assault—while
Counselor Boyea stood outside the cell encouraging them. (See Am.
Compl. ¶¶ 4-6, Dkt. No. 9, Attach. 1, 11-cv-1422.) Though Tafari suffered
broken ribs, black eyes, swollen face, laceration on his head, and bruises
and abrasions all over his body, Nurse Baker denied his request for
medical treatment. (See id. ¶¶ 7-8.)
5.

11-cv-1429: Tafari v. Zerniak et al.

Following his tier hearing on December 16, 2010, Tafari was
assaulted by officers Gokey, Ramsdell and Zerniak, while Deputy Uhler
observed and encouraged the assault. (See Compl. ¶ 4, Dkt. No. 1, 11-cv1429.) Despite suffering a bloody discharge from his nose and left ear, as
well as bruises on his legs, chest, stomach, arms, face, back and head,
Tafari’s subsequent request for medical treatment was denied by Nurse
Waterson and Dr. Adams. (See id. ¶¶ 5-7.)
6.

11-cv-1446: Tafari v. Gettman et al.

While being escorted to the Wende Correctional Facility on July 26,
2011, Sergeant Gettmann ordered Officer Rushlow to assault Tafari. (See
Compl. ¶ 4, Dkt. No. 1, 11-cv-1446.) Rushlow complied and “began
punching [him] in the arms, chest, stomack [sic] and face/head.” (Id. ¶ 5.)
7

During the “beating,” Officer King, the third officer on the transport,
encouraged Rushlow to “whip [Tafari], so he can drop that lawsuit against
DSS. Uhler.” (Id. ¶ 6.) Sergeant Gettman echoed this statement, and
further admitted that Deputy Uhler “ordered this beating.” (Id. ¶ 7.) When
Tafari returned to Upstate, he requested, but was denied, medical
treatment by Nurse Wilson. (See id. ¶ 8.) Relatedly, Sergeant Gettman
repeated his threat when he transported Tafari to Auburn Correctional
Facility on October 17, 2011. (See id. ¶ 11.)
7.

11-cv-1447: Tafari v. Bellnier et al.

During their infirmary rounds on April 20, 2009, Tafari informed
superintendents Bellnier and Sheahan of the threats Deputy Uhler made
against him, and asked them for protection. (See Compl. ¶ 5, Dkt. No. 1,
11-cv-1447.) After his request was denied, Officer Tulip ordered Tafari to
“the boss chair”; when he got off of it, he was assaulted by officers Wood,
Hastings, Tulip and Chase, as well as superintendents Sheahan and
Bellnier. (Id. ¶¶ 6-8.) Although he suffered broken ribs, a head laceration
and bruises over the entirety of his body, Tafari was denied medical
treatment by Nurse Sturgen. (See id. ¶ 9.)
8.

11-cv-1464: Tafari v. Bosco et al.
8

While on suicide watch at Great Meadow OMH in April 2009, FPA
Bosco ordered the officers observing Tafari to assault him. (See Compl. ¶
6, Dkt. No. 1, 11-cv-1464.) Officers Smith, Kemp and Wright, along with
Specialist Battu, complied. (See id. ¶ 7.) They entered Tafari’s cell,
injected a substance in his buttocks, and proceeded to kick, stomp and
punch him “all over his body.” (Id.) Further, Specialist Battu, who later
denied Tafari medical treatment, threatened him with additional assaults
unless he dropped his lawsuit against Deputy Uhler. (See id. ¶¶ 7-8.)
9.

11-cv-1476: Tafari v. Smith et al.

In a related incident to the one described in 11-cv-1464, Tafari claims
that he was assaulted on April 13, 2009 by Lieutenant Smith, Captain
Murphy and other unknown officers, after Superintendent Rock, who was
standing outside of the cell, made retaliatory threats for Tafari’s pending
suit against Deputy Uhler. (See Compl. ¶¶ 6-7, Dkt. No. 1, 11-cv-1476.)
Upon his return to Upstate, “all the named defendants” denied him care for
the injuries he sustained. (Id. ¶ 8.)
10.

12-cv-269: Tafari v. Allen et al.9

9

On May 16, 2012, Tafari filed a motion to amend his Complaint. (See Dkt. No. 10,
12-cv-269.) For the reasons stated above, (see supra note 5), the motion is granted.
Relatedly, the court received and reviewed both the Report-Recommendation and Order (R&R)
filed by Judge Baxter on May 9, 2012, and Tafari’s objections to that R&R. (See Dkt. Nos. 8-

9

In the course of his transfer from Clinton Correctional Facility to
Upstate on March 31, 2009, Tafari, who was sitting in the van in full
restraints, was assaulted by Lieutenant Allen. (See Am. Compl. ¶ 8, Dkt.
No. 10, Attach.1, 12-cv-269.) As Allen punched and yelled at Tafari,
superintendents Artus, Racette and Uhler cheered him on. (See id.) When
Allen was finished, Racette punched Tafari in the face, and finally, Uhler
joined in, grabbing Tafari by the hair and smacking him in the face. (See
id. ¶¶ 9-10.) Tafari later sought medical attention, but was denied by Nurse
Practitioner Lashaway. (See id. ¶ 11.)
11.

12-cv-662: Tafari v. Ferrick et al.10

On September 22, 2011, officers Ferrick, Bush and Welch ordered
Tafari out of his cell for a frisk; Tafari complied and was moved to the
“lower floor holding cell.” (Am. Compl. ¶¶ 5-6, Dkt. No. 7, Attach. 1, 12-cv662.) When he returned to his cell, the three officers “gang assaulted”
Tafari and made various racial slurs while doing so. (Id. ¶ 7.) After leaving
the cell, Ferrick removed Tafari’s restraints and told him that if he did not

10, 12-cv-269.) Although the R&R is well-written and legally sound, the court’s decision to hold
an evidentiary hearing obviates the need to adopt Judge Baxter’s recommendations. It follows
that the R&R is, at this juncture, moot.
10

On May 21, 2012, Tafari filed a motion to amend his complaint. (See Dkt. No. 7, 12cv-662.) For the reasons stated above, (see supra note 5), the motion is granted.

10

drop the lawsuit against Deputy Uhler, things would get worse. (See id. ¶
8.) Tafari subsequently sought treatment for his “fresh” injuries, but Nurse
Mullen refused, stating that he would not be cared for until he discontinued
the lawsuit against Deputy Uhler. (Id. ¶ 9.)
12.

12-cv-1062: Tafari v. Bilow et al.

As he entered the visiting room on April 28, 2012, Officer Ramsdell
threatened Tafari with physical harm unless he dropped the lawsuit against
he and Deputy Uhler. (See Compl. ¶ 4, Dkt. No. 1, 12-cv-1062.) Shortly
thereafter, Tafari was ordered out of the visiting room and into the strip/frisk
room by Officer Bilow and Sergeant Herbert for “using a SHU pen to write
down legal notes.” (Id. ¶ 5.) The officers proceeded to verbally harass him
during the search, and after it was complete, Bilow punched Tafari in the
right side twice, while threatening additional harm unless he dropped his
lawsuits against Deputy Uhler. (See id. ¶¶ 5-6.) At the completion of the
visit, Tafari was again taken to the strip/frisk area. (See id. ¶ 7.) Bilow
ordered him against the wall, and after he bent over to be searched, stuck
his fingers in Tafari’s rectum, pumping them four or five times. (See id.)
When Bilow finished, he, along with Ramsdell and Herbert, assaulted
Tafari. (See id.) After returning to his cell, Tafari unsuccessfully requested
11

treatment from Nurse Waterson. (See id. ¶ 8.) Tafari was eventually
examined by Dr. Schoyer, who, among other things, conducted an anal
exam. (See id. ¶ 9.) Just over one month later, Bilow again threatened
Tafari, and promised to retaliate against him for reporting the February
2010 and April 2012 incidents. (See id. ¶ 12.)
B.

Procedural History
The twelve consolidated cases, which involve incidents that occurred

over a three-year period from April 2009 to June 2012, were all
commenced between June 2011 and July 2012. (See supra Part II.A.) On
January 4, 2012, defendants moved to revoke Tafari’s in forma pauperis
(IFP) status, arguing that he was subject to the three strikes provision of 28
U.S.C. § 1915(g). (See generally Dkt. No. 42.) While that motion was
pending, Tafari not only filed two separate motions for injunctive relief—the
first in May 2012 in twelve cases, and the second in June 2012 in
seventeen cases, (see Dkt. No. 61 at 5)—but also sought to amend five of
his Complaints, (see supra Part II.A.) In light of Tafari’s extensive history of
vexatious litigation, the fact that he was subject to the three strikes
provision at the time he commenced each of the consolidated cases, the
imprecision in his allegations of imminent danger, and the pending motion
12

to revoke his IFP status, the court scheduled an evidentiary hearing to
determine the veracity of Tafari’s claims of imminent danger. (See Dkt. No.
42; Dkt. No. 63 at 4-5.)
Recognizing the need to afford Tafari a full and fair opportunity to
substantiate his claims, the court permitted both parties to call live
witnesses, and to submit any other evidence, in any form—including
affidavits, declarations, disciplinary records, incident reports and/or medical
records—that was relevant to the question of imminent danger. (See Dkt.
No. 63 at 5-6.) To this end, Tafari filed requests for videotapes, (see Dkt.
Nos. 66, 67, 70, 82, 88), his complete grievance file from Clinton and
Upstate Correctional Facilities, (see Dkt. Nos. 79, 87), and more broadly,
all records relevant to his Complaints, (see, e.g., Dkt. No. 86). He also
provided proposed witness lists, (see Dkt. Nos. 69, 71, 83), sought—and
received—representation for the hearing, (see Dkt. Nos. 72, 74), and
submitted exhibits and declarations in support of his claims, (see Dkt. Nos.
89-90.) Similarly, defendants filed several exhibits, including the relevant
portions of Tafari’s medical records and grievances from Upstate, (see Dkt.
Nos. 75-78, 97-99), witness lists, (see Dkt. Nos. 73, 96), a declaration from
Dr. Adams, (see Dkt. No. 92, Attach. 1), and the requested, available
13

videotapes, (see id., Attachs. 2-4).
The court further ordered the parties to participate in a series of prehearing conferences with Magistrate Judge Andrew T. Baxter, the purpose
of which was generally to ensure that the scope of the hearing remained
focused on the question of imminent danger. (See Dkt. No. 63 at 6-7.)
Over the course of the conferences,11 Judge Baxter not only afforded both
parties latitude in discovering evidence, but also ensured that Tafari was
given sufficient time to consult with his attorney. (See generally Dkt. Nos.
65, 72.) By that same token, Judge Baxter rejected Tafari’s attempt to
obtain his complete grievance file from Clinton and Upstate, (see Dkt. No.
79),12 denied his request to call certain medical experts, and, given, among
other things, security concerns, limited the number of live, inmate

11

Though not assigned docket numbers, the docket reflects several entries by Judge
Baxter that further explicate his decisions with respect to the evidentiary hearing.
12

In a letter received September 28, 2012, Tafari again demanded that defendants turn
over evidence that his former-counsel unsuccessfully sought during the pre-hearing
conferences. (See generally Dkt. No. 108.) In short, the evidence Tafari seeks is irrelevant to
the question before the court, as it relates to a period which precedes the events underlying
the Complaints. (See id.) Although Tafari is clearly seeking to demonstrate a pattern of
misconduct, (see, e.g., Am. Compl. ¶ 17, 12-cv-269), evidence from facilities other than
Upstate, and/or which precedes the relevant time period here, has no bearing on whether
Tafari was in imminent danger when he filed any of his Complaints. Equally so was the
proposed testimony from the various medical experts Tafari identified, (see Dkt. No. 83 at 1-2),
which became wholly immaterial after defendants filed an uncontested affidavit from Dr.
Adams, (see Dkt. No. 92, Attach. 1). Tafari received this affidavit prior to the August 30, 2012
pre-hearing conference, and still declined to call Dr. Adams as a witness.

14

witnesses at the hearing, (see generally Dkt. Nos. 91, 94).13
The court conducted the hearing on September 5 and 6, 2012, during
which it heard testimony from the following witnesses: Imhotep H’Shaka,
Eugene Sidney, Steve Coleman, James Salamone, Raphael Thompson,
Ralph Bucky Phillips via David Szalda, InJah Tafari, Stephen Weishaupt,
Brandi White, Nancy Smith and Donald Uhler. (See generally Tr.14 at 12388.) At the close thereof, the parties were granted an additional two
weeks to supplement, and settle, the record. (See id. at 392:18-393:22.)
Both did so, as Tafari filed multiple declarations, an objection, and a motion
to amend all of his Complaints,15 (see Dkt. Nos. 102, 105, 107, 109, 112,
113, 114, 116, 11716), and defendants submitted an affidavit from Donald
13

Notwithstanding Tafari’s inability to call all of the inmates he identified, the court
received—and has now considered—all of their declarations. (See Dkt. No. 90.)
14

Page references preceded by “Tr.” refer to the transcript of the evidentiary hearing
conducted on September 5 and 6, 2012. (See Dkt. Nos. 110-11.)
15

Because the court previously rejected an identical motion at the start of the hearing,
(see Tr. at 9:3-10:19; Dkt. No. 107), it suffices to say that Tafari’s arguments in support of his
motion remain unpersuasive. As such, the motion is denied. Furthermore, Tafari’s request to
file a Third Amended Complaint in 11-cv-694 is also denied, (see Dkt. No. 117), as his claim
that he is now urinating blood, assuming that it is true, is too far removed from the operative
time period in that case—i.e., June 2011, when Tafari filed his Complaint.
16

Since the close of the proof in this matter, Tafari has not only filed hundreds of
additional pages of records, but has also insisted that his former counsel turn over documents
in his possession. (See Dkt. Nos. 108, 109, 112-14, 116.) Additionally, he has repeatedly
requested that he be given additional time to file a response after he reviews the
supplementary filings, (see, e.g., Dkt. No. 113, 116), many of which he has apparently already
reviewed, (see generally Dkt. Nos. 114, 115). These requests are denied. From the outset,

15

Uhler, with attached compact discs and grievances to refute claims Tafari
made for the first time at the hearing, (see Dkt. No. 104). With the record
settled, the court terminated attorney Rench’s representation. (See Dkt.
No. 106.)
III. Legal Standard
Under 28 U.S.C. § 1915(g), the so-called three strikes provision, a
prisoner-plaintiff may not file a civil action or appeal with the benefit of IFP
status if, “on [three] or more prior occasions, while incarcerated or detained
in any facility, [he] brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or
fail[ed] to state a claim upon which relief may be granted.”17 However, a
narrow exception exists that permits such filings provided that “the prisoner
is under imminent danger of serious physical injury.” Id.; see Pettus v.
Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). This exception is a safety

this hearing was intended solely to adduce evidence, not argument. With respect to the
former, which Tafari had his chance to present, the court is more than able to conduct an
independent review of the testimony, documents and videos it received, and pass judgment on
them without argument from either party. Any further filings are simply unnecessary.
Moreover, the court is wholly unpersuaded by Tafari’s demand for additional video footage
from incidents that purportedly occurred in October 2012. (See Dkt. No. 113 at 2-3). These
have no bearing on the issue before the court, and thus, that request is also denied.
17

Importantly, if a District Court determines that IFP status was improvidently granted
to a prisoner, it may be revoked. See, e.g., McFadden v. Parpan, 16 F. Supp. 2d 246, 247
(E.D.N.Y. 1998).

16

valve for a prisoner who is otherwise barred from filing IFP. See Malik v.
McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). To qualify for the exception,
the danger must be present at the time the plaintiff files his complaint. See
id. Although allegations of “ongoing serious physical injury, or of a pattern
of misconduct evidencing the likelihood of imminent serious physical
injury,” Brown v. Johnson, 387 F.3d 1344, 1350 (11th Cir. 2004) (internal
quotation marks omitted), may qualify, “a three-strikes litigant is not
excepted from the filing fee if he alleges a danger that has dissipated by
the time a complaint is filed.” Pettus v. Morgenthau, 554 F.3d 293, 296 (2d
Cir. 2009) (citations omitted).
In reviewing the allegations of physical harm, the court need not
attempt to “‘fine tune what is serious enough to qualify for the exception.’”
Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010) (quoting Ciarpaglini
v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (internal quotation marks
omitted)). But courts are not required to “blindly accept a prisoner’s
allegations of imminent danger” either. Taylor v. Watkins, 623 F.3d 483,
485 (7th Cir. 2010). Indeed, where the allegations of imminent danger are

17

challenged,18 the court must “determine whether they are credible.” Id.;
accord Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997), overruled on other
grounds by Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). To do
so, the court “may rely upon evidence supplied by sworn affidavits or
depositions, or, alternatively, may hold a hearing.” Gibbs, 116 F.3d at 8687. Ultimately, whether the plaintiff affirmatively substantiates his claim of
imminent danger, or the defendant disproves the claim is of no moment.
Though the court’s inclination is that the burden should be on the plaintiff,
as it is he who has the initial duty under Fed. R. Civ. P. 11(b), assigning the
burden of proof should not cloud the focus of the inquiry—i.e., to determine
whether the plaintiff has stated a credible claim of imminent danger that
excuses payment of the filing fee.
IV. Findings of Fact
The following represents the court’s findings of fact. In the interest of
clarity, it first discusses the testimony of the live witnesses in the order they
appeared at the hearing, and then incorporates all of the credible, relevant

18

Because section 1915 was enacted “to give district courts greater power to protect
their dockets from meritless lawsuits,” the court is permitted to raise the issue sua sponte.
Harris v. City of N.Y., 607 F.3d 18, 23 (2d Cir. 2010). It follows that while it will usually be the
defendant who raises the challenge to the veracity of the plaintiff’s claim of imminent danger,
the court may also do so.

18

evidence of record to provide detailed findings with respect to each of the
alleged incidents.19
A.

Witnesses
As a general matter, the court carefully observed each witness as

he/she testified at the hearing. Among other factors, it took note of the
witnesses’ demeanor, manner and tone of voice on the stand, their
recollection of the incidents about which they testified, their motive for
testifying, if any, and the extent to which, if at all, the witnesses’ testimony
was either supported or contradicted by other evidence in the record. In so
doing, the court, for the reasons articulated below, finds that the testimony
of Tafari’s witnesses, including Tafari himself, was unreliable, belied by
other evidence of record, and likely crafted by Tafari for the purpose of
furthering his litigation.20 On the contrary, the testimony by defendants’
witnesses was not only reliable, but also corroborated by documentary and
video evidence. For the reasons that follow, the court finds that Tafari’s
version of the events in question, as testified to by he and his witnesses, is

19

As the court ruled at the hearing, the record includes all of the parties’ submissions.
(See Tr. at 392:2-17.)
20

While a number of Tafari’s witnesses likely perjured themselves, those that did not
only avoided doing so by refusing to provide detailed accounts of what they claimed to see or
hear.

19

wholly incredible, and, instead, fully credits the testimony provided by
defendants’ witnesses.
1.

Imhotep H’shaka

H’shaka is currently an inmate at Upstate who has known Tafari for
over four years. (See Tr. at 12:6-13:2, 21:2-4.) In advance of the hearing,
H’shaka—at Tafari’s request—prepared a declaration on July 5, 2012,
which was provided to him to “refresh [his] recollection” of specific dates.
(See id. at 13:21-14:3, 26:1-27:14; Dkt. No. 90 at 21-22.) Though he
claims to have seen Tafari mistreated by corrections officers at Upstate
“numerous times,” he was only able to testify about three incidents. (Tr. at
13:3-20:8.)
The first incident H’shaka saw occurred on December 16, 2010,
when he was returning from a tier hearing. (See id. at 14:21-15:9, 22:515.) H’shaka testified that he witnessed Tafari being “assaulted by
guards,” namely officers Gokey and Ramsdale. (Id. at 15:5-13.) He further
stated that he overheard the guards tell Tafari to “drop the lawsuit.” (Id. at
15:22-16:1.) Albeit unable to specify which lawsuit it was, H’shaka stated
that it was connected to Deputy Uhler, who he was clearly familiar with.
(Id. at 16:2-23.)
20

H’Shaka next discussed an incident that he heard, but could not see,
on February 18, 2010. (See id. at 17:6-19:6.) That morning, sometime
between 7:00 and 8:45 a.m., H’shaka heard someone—whose voice he did
not recognize at the time—pleading for help. (See id. at 18:1-6.) In
response to the pleas, other voices, which H’shaka could not identify either,
used racial slurs and made comments about dropping a lawsuit. (See id. at
18:8-20.) H’shaka testified that he later learned the person begging for
help was Tafari, though he still did not know who the aggressors were.21
(See id. at 18:20-19:6.) Finally, H’shaka stated that he overheard Tafari
being “roughed up” on the day he arrived at Upstate. (Id. at 19:7-20:6.)
Despite the recency of his declaration, and the fact that he reviewed
it on the stand, H’shaka’s testimony was inconsistent with his declaration.
For example, he testified that he only knew the names of two of the guards
who allegedly assaulted Tafari on December 16, 2010, but in his
declaration, he mentions, by name, officers Gokey and Ramsdell, Captain

21

Tafari submitted a declaration from Alton Hutchinson that is suspiciously similar to
H’Shaka’s declaration. (Compare Dkt. No. 90 at 23, with id. at 21-22.) Given this similarity,
and Hutchinson’s lack of first hand knowledge of the incident, (see id. at 23), the court finds
this declaration to be unreliable. So too are the declarations of Woodrow Flemming, (see id. at
14-16), Darnell Weaver, (see id. at 17-18), and Eddie Carrasco, (see id. at 32), as each lacks a
sufficient basis of personal knowledge to make such statements, and/or is insufficiently specific
to warrant consideration.

21

Zerniak and Deputy Uhler. (Compare id. at 15:10-11, with Dkt. No. 90 at
22.) Above all, the inability to recall that Deputy Uhler was present is
telling, as H’shaka’s declaration not only places him at the scene, but also
purports to recount specific statements Uhler made. (See Dkt. No. 90 at
22.) Furthermore, in his declaration, H’shaka claimed that he was being
“escorted to a tier hearing” when he observed the assault, however, on the
stand, he stated that he just completed his hearing. (Compare id. at 22,
with Tr. at 22:10-12.) And while the court is skeptical of H’shaka’s inability
to identify Tafari’s voice on the morning of February 18, 2010, (see id. at
18:4-6), his statement that he learned that it was Tafari who was screaming
that afternoon is nevertheless inconsistent with his testimony, in which he
stated that he learned it was Tafari the next day. (Compare id. at 26:6-16,
with Dkt. No. 90 at 22.) Finally, H’shaka’s familiarity with Tafari’s litigation
history, including the specifics of his individual Complaints, further bolsters
the court’s suspicion that H’shaka was not testifying on the basis of his own
recollection. (See Tr. at 26:17-28:9.)
These inconsistencies, coupled with the court’s observations of
H’shaka and its consideration of the record as a whole, provides more than
a sufficient basis to discredit the entirety of H’shaka’s testimony. As such,
22

the court rejects both his testimony and declaration.
2.

Eugene Sidney

Sidney arrived at Upstate shortly after Tafari, and has known him for
approximately three years. (See id. at 33:8-21.) Although his declaration,
which, like H’shaka’s, was prepared in July 2012, stated that he witnessed
corrections officers and Deputy Uhler threaten Tafari about his pending
lawsuits, (see Dkt. No. 90 at 33-34), Sidney testified that the threats
emanated from the officers’ dislike of Tafari’s “special privileges,” (Tr. at
35:14-16, 37:12-15). With the exception of generalizations and references
to unknown records and videos to corroborate his testimony, Sidney could
not recall a single incident that supports Tafari’s allegations. (See
generally id. at 33:6-43:1.) Despite being explicitly asked about physical
evidence, (see id. at 42:12-13), Sidney purposely avoided repeating the
statement he made in his declaration in this regard, (see Dkt. No. 90 at 34).
In short, based on his demeanor, mannerisms, and general
uneasiness on the stand, the court finds Sidney’s testimony untrustworthy.
His declaration, which was prepared just two months before the hearing, is
similarly unreliable, as it contains neither dates of the alleged misconduct,
nor the names of any corrections staff, other than Deputy Uhler, who
23

threatened Tafari. (See id. at 33-34.) Accordingly, the court rejects this
evidence as well.
3.

Steve Coleman

Beginning in 2008, Coleman was housed at Upstate, but he has
known Tafari since the 1980s. (See Tr. at 45:8-18.) He too prepared a
declaration in July 2012. (See Dkt. No. 90 at 24-25.) However, despite
being provided a copy of his declaration at the outset of his testimony, (see
Tr. at 46:3-47:7)—which includes a footnote22 with both the dates of the
incidents he observed and corrections staff involved, (see id.)—Coleman
repeatedly stated that he could not remember details, such as dates or
names, (see, e.g., id. at 47:16-17, 48:11-13, 50:19-21). Nevertheless,
Coleman went on to testify about the following events: (1) a time he
observed that Tafari was “beat up real, real bad” when he returned from a
court trip; (2) an incident following a cell search where Counselor Boyea
was present; (3) two occasions where Nurse Baker slammed Tafari’s hand

22

Notably, the footnote in Coleman’s declaration is nearly identical to the one Samuel
Robinson, another inmate who submitted a declaration on Tafari’s behalf, used in his.
(Compare Dkt. No. 90 at 24-25, with id. at 26-27.) While this may appear benign, the court
cannot overlook the fact that two separate individuals were able to recall events at least one
year after they occurred, both decided to use a footnote to describe them, and in doing so,
recounted the incidents in the exact same order. (See id.) More importantly though, there is
other evidence in the record that rebuts these assertions. (See infra Part IV.B.) Thus,
Robinson’s declaration is also disbelieved.

24

in the feed-up hatch; and (4) the threats by unknown staff members on
February 18, 2010. (Id. at 47:16-54:7.)
As was the case with the witnesses that preceded him, Coleman’s
testimony and declaration are implausible. Besides the apparent
issue—that is, a witness who cannot recall dates or names, despite being
provided with a document he prepared just sixty days earlier that includes
that information—Coleman’s recitation of the misconduct he observed is
inconsistent with his declaration, and Tafari’s allegations. By example,
Coleman’s declaration clearly describes an assault on January 6, 2011, the
date Tafari was allegedly beaten by officers while Counselor Boyea told
him to drop the lawsuits against Deputy Uhler. (See Dkt. No. 90 at 25.)
Those allegations are in accord with Tafari’s claims in 11-cv-1422, as the
dates and cell number are the same. (Compare id., with Am. Compl. ¶¶ 45, 11-cv-1422.) However, at the hearing, Coleman painted a different
picture. He began to describe the incident correctly, stating that it was after
a cell search, but then, after being asked for specifics, started talking about
a tier hearing, then went back to mention Counselor Boyea, and finally,
declared that staff, including Deputy Uhler, were present and made threats
against Tafari on that day. (See Tr. 48:21-50:14.) What is remarkable, and
25

telling about the veracity of Coleman’s testimony, is that Tafari does not
allege that Uhler was present, and the only tier hearing Tafari mentions
occurred one month prior to this incident. (See generally Am. Compl., 11cv-1422.)
In addition to those contradictions, Coleman’s statement on crossexamination that Tafari was threatened and/or assaulted at “different times,
but almost by the same people,” is irreconcilable with both the allegations
and facts in this case. (Tr. at 56:9-10.) Given the overwhelming number of
inaccuracies in his testimony and the manner in which he conveyed them,
the court finds Coleman to be wholly incredible, and thus, rejects both his
testimony and declaration.
4.

James Salamone

Salamone was an inmate at Upstate from January 27, 2011 until
August 23, 2012. (See id. at 64:10-19.) He was housed next to Tafari
during his tenure there. (See id. at 64:22-23.) After refreshing his
recollection with his declarations, (see Dkt. No. 90 at 28-30), Salamone
testified that he overheard corrections officers threatening Tafari after a cell
search on September 22, 2011. (See Tr. at 65:3-67:8.) He further recalled
hearing “nurses” refuse to provide Tafari medical treatment, and observed
26

Tafari return from a court trip in July 2011 with bruises on his face. (Id. at
68:12-69:17.) Finally, Salamone stated that on more than one occasion he
heard Deputy Uhler tell Tafari to “drop the lawsuit.” (Id. at 69:23-70:18.)
Unlike the witnesses before him, Salamone’s testimony was, for the
most part, consistent with his declarations. (Compare Dkt. No. 90 at 28-30,
with Tr. at 65:3-71:9.) The primary inconsistency between the two is that
Salamone’s declaration states that a female nurse refused to treat Tafari,
(see Dkt. No. 90 at 30), while he testified on direct examination that it was
the “heavy set male nurse,” whose name he did not know, (Tr. at 68:2269:7.) Given the way in which Salamone conveyed this statement, it was
clear that he did not simply misspeak.
However, this misstatement, standing alone, is not what marginalized
Salamone’s testimony. Rather, it was his deliberate refusal—in his
declarations and during his live testimony—to identify the officers or
nurses, with the exception of Deputy Uhler, who allegedly mistreated
Tafari, that is significant. (See Dkt. No. 90 at 28-30; Tr. at 65:3-71:9.)
Despite being repeatedly asked for the names of the individuals involved,
even with respect to non-violative conduct such as escorting Tafari to his
cell, Salamone claimed that he either did not know, or could not remember.
27

(See Tr. at 67:9-16, 68:22-25, 69:18-22.) For all of these reasons, the
court finds Salamone’s declarations and testimony to be unworthy of belief.
5.

Raphael Thompson

Thompson, another inmate at Upstate, principally testified about the
alleged sexual assault that occurred on April 28, 2012. (See id. at 73:678:18.) Relying on his April 30, 2012 declaration, (see Dkt. No. 90 at 31),
Thompson claimed that he saw an officer place his hands “between
[Tafari’s] buttocks area,” and threaten him that the assault would continue
unless he dropped his lawsuits. (Tr. at 75:16-77:10.) Simply put,
Thompson fabricated this story.
This is so because of the inexplicable anomaly on Thompson’s
declaration—namely, the inclusion of the consolidated docket number for
the lead case in this matter, 11-cv-694, in the header. (See Dkt. No. 90 at
31.) Although this court did not consolidate the cases until June 29, 2012,
(see Dkt. No. 62), Thompson managed to include the appropriate header,
with the lead case number, on the declaration he supposedly wrote two
months earlier, (see Dkt. No. 90 at 31; Tr. at 84:20-22). Needless to say,
when the court questioned Thompson about this discrepancy, he offered
no plausible explanation. (See Tr. at 84:2-87:21.) Given his inability to tell
28

the truth, the court rejects Thompson’s testimony and declaration.
6.

Ralph Bucky Phillips (through David Szalda)

David Szalda is a law clerk for Tafari’s counsel who took part in a
telephone conversation with one of Tafari’s witnesses, Phillips. (See id. at
91:6-24.) Due to security concerns raised by DOCCS, Judge Baxter
arranged for Mr. Rench to interview Phillips by telephone. (See id. at
88:19-89:10.) Mr. Rench did so, and Mr. Szalda transcribed Phillips’
answers during that call. (See id. at 91:6-92:22.) In sum, Phillips testified
about events that occurred at Clinton, sometime prior to Tafari’s transfer to
Upstate. (See id. at 93:16-97:9.) Though Phillips mentioned Deputy Uhler,
he was unable to provide dates, or approximations, for the alleged
misconduct. (See id.) Moreover, he never personally witnessed any
physical harm to Tafari. (See id.) He did, however, state that he overheard
Deputy Uhler threaten Tafari once, and knew that Tafari was placed on a
restrictive diet for unhygienic conduct. (See id. at 95:13-97:2.)
In sum, Phillips’ testimony has no probative value here, as it occurred
at a different correctional facility, at an unknown time. While he mentioned
Deputy Uhler, he provided no specifics of the threat Uhler allegedly made.
(See id. at 95:13-95:17.) Consequently, the court is unable to discern
29

what, if anything, occurred at Clinton; the connection between the
purported misconduct at Clinton and Upstate; and ultimately, if there was
any, how it demonstrates that Tafari was in imminent danger of serious
physical injury beginning in June 2011.
7.

InJah Tafari23

Tafari spent a considerable amount of time discussing the eight, or
nine, medical conditions he suffers from. (See id. at 108:15-135:7.) In so
doing, Tafari reiterated his claim that Dr. Adams discontinued all of his
medical treatments in March 2010—treatments which he was receiving at
his prior facilities, including Clinton. (See id. at 119:3-13.) However, Tafari
made a contrary assertion in another pending action before the
court—specifically, Tafari v. Hogan et al., 08-cv-1060, the case he claims is
the genesis of the threats by Deputy Uhler, and others. (See Am. Compl. ¶
50, Dkt. No. 10, 08-cv-1060; Tr. at 137:16-19.) In both his Complaint and
Amended Complaint, filed in October 2008 and February 2009,
respectively, Tafari claims that after he arrived at Clinton in December
2007, Nurse Practitioner Lashaway “discontinued [his] treatments which
23

In the interest of brevity, the court need not provide an in depth discussion of Tafari’s
testimony, as it, for the most part, mirrored what he alleged in his twelve Complaints. (See Tr.
at 102:6-221:7.) Instead, the court focuses on the portions of Tafari’s testimony that are
relevant to evaluating his veracity.

30

had proven effective . . . in alleviating pain, suffering, recurrence of
diseases, dislocating of shoulder and vomiting.” (Compl. ¶ 50, Dkt. No. 1,
08-cv-1060; see Am. Compl. ¶ 50, 08-cv-1060.) Although his testimony is
more explicit, the conditions discussed are the same. (Compare Am.
Compl. ¶ 50, 08-cv-1060, with 2d Am. Compl. ¶ 16 and Tr. at 108:15135:7.) Irrespective of whether the conditions existed, or, if they did, what
treatment they required, Tafari’s representations to the court on the
discontinuance of his medical treatment are irreconcilable.
Beyond this inconsistency, Tafari’s testimony was instructive because
it demonstrated his vast knowledge of institutional policies and procedures,
his understanding of the pertinent law, and his propensity to manipulate his
allegations to fit the facts. First, Tafari is well-versed in DOCCS policy and
procedure. For example, he not only described the entire inmate grievance
program, including its history and exhaustion requirement, (see, e.g., Tr. at
175:12-176:15), but he also explained how photographs are supposed to
be taken in conjunction with the filing of a use of force report, (see id. at
155:10-18). Furthermore, on more than one occasion, Tafari cited case
law to support the point he was trying to make. (See id. at 162:14-21,
186:21-187:10, 398:3-5.)
31

Lastly, Tafari’s attention to detail is remarkable. He not only studied
defendants’ submissions, but also identified the limits of their proof. And
with those limits in mind, Tafari manipulated his claims, albeit subtly, to
avoid running afoul of defendants’ evidence. The hallmark example of this
is his attempt to demonstrate the shortcomings in the videotape of the April
28, 2012 strip/frisk. In his testimony, Tafari added a chronology of the
events of that day, which does not appear in his Complaint. (Compare
Compl. ¶¶ 5-7, 12-cv-1062, with Tr. at 171:17-172:2.) Although the court
recognized that Tafari had done so, it did not, at the time, assign the
distinction any unusual significance. In fact, it was not until Tafari filed a
declaration in response to defendants’ post-hearing submission that the
court appreciated the lengths Tafari will go to further his litigation.
To explain, Tafari’s declaration—for the first time—identifies the
precise strip cell he was in during the assault, in addition to reiterating the
times he testified about. (See Dkt. No. 109 ¶ 5.) Besides being omitted
from his Complaint, (see Compl. ¶¶ 5-7, 12-cv-1062), neither the time nor
the location are mentioned in Tafari’s grievances on the assault, (see Dkt.
No. 104 at 80-88). Indeed, in his interview with Lieutenant Laramay on
May 30, 2012, Tafari stated that “he could not recall where the alleged
32

sexual assault occurred.” (See id. at 71.) Yet, inexplicably, roughly four
months later, after listening to Deputy Uhler’s testimony and reviewing
defendants’ supplemental submission, Tafari was able to recall the exact
strip cell that he was in during the assault. (See, e.g., Tr. at 347:12-18;
Dkt. No. 109 ¶ 5.) This is not a coincidence. Rather, it is a calculated
attempt by Tafari to orchestrate the evidence in his favor.
Finally, in addition to simply adding facts, Tafari offered several
colorable, well-articulated explanations to bolster his claims. Of note, was
Tafari’s reasoning for refusing a colonoscopy, (see Tr. at 129:23-130:7), his
explanation of the acoustics at Upstate to prove that inmates inside could
hear an assault in the parking lot, (see id. at 158:2-8), his knowledge of the
camera coverage, or lack thereof, to show why there is no video evidence
to corroborate his allegations, (see id. at 150:7-12), and the repeated
excuses for why neither the grievances nor medical records support his
claims, (see, e.g., id. at 187:11-23, 209:11-18).24 Having observed him on
the stand, it was readily apparent that Tafari rehearsed his testimony and

24

On at least one occasion, however, Tafari’s explanation of an incident actually
undercut a claim. During his description of the assault in Great Meadow OMH on April 7,
2009, Tafari testified that after he refused to take his medication, the staff “threw [him] on the
bed and they stuck [him] in [his] buttocks with a needle.” (Tr. at 148:20-25.) Conveniently,
Tafari omitted this explanation from his Complaint in 11-cv-1464, which indicates that the
injection was unprovoked. (See Compl. ¶ 7, 11-cv-1464.)

33

was prepared to counter defendants’ challenges.
In sum, the court finds that Tafari’s testimony was self-serving,
convenient, and ultimately, incredible. By and large, he avoided outright
inconsistencies between his testimony and Complaints, but in doing so,
highlighted his willingness to distort the truth or simply disregard it.
8.

Stephen Weishaupt

Weishaupt has been a senior investigator with the Inspector
General’s office of DOCCS for four and a half years. (See Tr. at 223:6-20.)
Prior to his employment with DOCCS, Weishaupt was a special agent with
the FBI for over twenty years. (See id. at 223:21-24.) He became familiar
with Tafari after being assigned two of his cases in 2009. (See id. at 224:27.) The first case involved the 135 grievances Tafari filed between
November 2008 and March 2009, which alleged, among other things,
assaults and mistreatment. (See id. at 224:10-14.) In the course of that
investigation, Weishaupt interviewed Tafari, who admitted that “he was
writing primarily to aggravate the staff in the facilities,” yet maintained that
his allegations were true. (Id. at 224:15-225:6.) Following a “thorough
investigation,” which included a review of each complaint, the available
videotapes, and any records that related to the incidents, Weishaupt could
34

not find any substantiation for Tafari’s assertions. (Id. at 225:10-226:24,
229:3-7.) Indeed, Weishaupt testified that “several” of Tafari’s claims were
“completely false.” (Id. at 225:17-22.) But Weishaupt also acknowledged
that it was not possible to confirm or deny some of Tafari’s allegations,
specifically those where an officer supposedly called him a name. (See id.
at 225:12-17.)
The second case Weishaupt investigated dealt with Tafari’s charge
that he was assaulted in the Upstate infirmary and the OMH unit at Great
Meadow in April 2009. (See id. at 227:4-12.) During this investigation,
Weishaupt not only interviewed Tafari, but he also reviewed the following:
Tafari’s medical records; photographs of him; written reports by the
accused staff; use of force reports, if there were any; and any available
videotapes. (See id. at 227:14-228:1, 239:24-242:2.) Ultimately,
Weishaupt found no evidence, medical or otherwise, to support Tafari’s
claims. (See id. at 240:21-242:2.) Although he filed a misbehavior report
against Tafari for lying in his complaint to the Investigator General’s office,
the “ticket” was dismissed because Tafari made similar claims in a
grievance. (Id. at 239:2-16.)
In short, the court finds Weishaupt’s testimony to be highly credible,
35

and relevant in evaluating both Tafari’s overall propensity for telling the
truth, as well as the purported incidents in April 2009. Among other things,
his demeanor on the stand and command of the information he presented
both support this finding.
9.

Brandi White

At the court’s request, defendants called White, the Inmate Grievance
Program Supervisor at Upstate. (See id. at 244:6-16.) Although she
provided testimony on the grievance program in general, the purpose of
White’s testimony was to authenticate the grievance records submitted by
defendants. (See id. at 244:21-246:23.) White further testified about the
restrictions placed on Tafari for filing excessive grievances, which she
estimated was between 400 and 500 over a three-year-period. (See id. at
248:17-254:22.) However, White was unable to state with certainty the
number of Tafari’s grievances that allege staff misconduct, or if any of them
had ever been substantiated. (See id. at 254:23-255:9.)
In short, the court finds White’s testimony entirely credible, though its
relevance is limited. Besides authenticating the grievance records, White
provided only background evidence of Tafari’s abuse of the grievance
program.
36

10.

Nancy Smith

Smith has been with DOCCS for over twenty years, the last nine of
which she has served as the Nurse Administrator at Upstate. (See id. at
266:6-267:9.) In that capacity, Nurse Smith became acquainted with
Tafari, as she is responsible for investigating grievances on nurses. (See
id. at 267:10-21.) Given that Tafari grieves about his medical care on a
weekly, or bi-weekly basis, Nurse Smith was unable to quantify the number
of Tafari’s grievances she investigated.25 (See id. at 267:22-268:3.)
Nevertheless, she provided relevant, credible testimony on her
investigations of these grievances, the medical treatment Tafari receives
daily, and whether the medical evidence corroborated his claims.
Before discussing her findings, Nurse Smith described the
methodology she employs when investigating allegations of misconduct.
(See id. at 267:13-21, 270:14-271:2.) Her first step is to take statements
from the nurse(s) named in the grievance, and, if there was a security
officer escorting the nurse, she receives that response from the security
team as well. (See id. at 270:16-22.) Next, Nurse Smith personally

25

Nurse Smith testified, however, that her investigations were unaffected by Tafari’s
pending litigation against corrections officials, since she had no knowledge of any such
lawsuits. (See Tr. at 327:24-328:25.)

37

interviews the inmate, and in the course of the interview, routinely asks if
there is additional information to add to the grievance or if there are
witnesses that need to be interviewed. (See id. at 270:22-271:2.)
Additionally, on “every” grievance, she reviews the relevant medical
records. (Id. at 271:9-14.) Applying this method to Tafari’s innumerable
grievances, Nurse Smith testified, after reviewing several of them, that they
were unfounded. (See generally id. at 268:11-292:22.)
Moreover, Nurse Smith explained the sick call program that Tafari
has access to, and uses, on a daily basis. (See, e.g, id. at 272:22-273:12,
323:2-3.) Relevantly, a nurse evaluating an inmate during sick call is not
only required to document every interaction, but also must report any
apparent injuries he/she observes—for example, a laceration or black
eye—even if that injury is not mentioned on the inmate’s sick call slip. (See
id. at 273:15-19, 274:1-3.) To this end, Nurse Smith reviewed Tafari’s
ambulatory health records on the stand, and found that his records, which
covered October 31, 2011 to April 20, 2012, did not reflect that Tafari
sustained any injuries from assaultive conduct on any date during that
period. (See id. at 274:17-285:3.)
Although Nurse Smith also provided testimony that rebuts Tafari’s
38

claim that he was denied medical treatment for his various ailments,26 (see
id. at 285:6-292:22, 296:10-320:21), it was her observations regarding
Tafari’s filings and motivations that are particularly enlightening. First, in
agreeing that his grievances were “generic,” Nurse Smith highlighted that
Tafari wrote his grievances in advance, and left blank the name of the
nurse and the date of the incident. (Id. at 322:15-24.) Specifically, she
stated: “Every nurse that had an encounter with [Tafari] was getting a
grievance on them, and [Tafari] just filled in the blank. It was Nurse
Waterson one day, Nurse Baker one day, and the date just changed. It
was the same grievance.” (Id. at 322:20-24.) Secondly, Nurse Smith
echoed Weishaupt’s testimony on Tafari’s retaliatory motivation in filing
grievances when she recounted a discussion she had with him. (See id. at
322:1-14.) During that conversation, which stemmed from Tafari’s
accusation that she acted unprofessionally during an investigation, Nurse
Smith explicitly told Tafari that she suspected that he was fabricating the
stories about the other nurses in his grievances. (See id.) Rather than
denying it, Tafari “blatantly” stated, “[t]he nurses lied [about him], so [he]

26

For instance, Tafari was observed on more than one occasion “lifting his legal work
off the top bunk” and performing other tasks required of him by security, (Tr. at 324:14-22), in
spite of the “excruciating pain” he suffers from daily, (id. at 142:15-22).

39

lie[s] about them.”27 (Id. at 322:11-14.)
In sum, Nurse Smith provided unimpeachable testimony that directly
spoke to matters in issue. She neither hesitated nor wavered during her
testimony, and, where possible, referenced documents that corroborated
her assertions. Thus, the court is heavily persuaded by her testimony.
11.

Donald Uhler

A twenty-eight year veteran of DOCCS, Uhler is currently the Deputy
Superintendent for Security Operations at Upstate. (See id. at 330:15-24.)
Previously, he was a Captain at Clinton. (See id. at 332:3-8.) He, like
Nurse Smith, is quite familiar with Tafari, from both his time at Clinton, and
now at Upstate. (See id. at 340:17-341:22.) Deputy Uhler testified on a
range of subjects, including departmental policy on the use of force, the
video recording capabilities at Upstate and his investigations of Tafari’s
grievances. (See id. at 333:6-358:19.)
With respect to the use of force, Deputy Uhler stated that anytime an
officer uses force—that is, when an officer uses direct or indirect contact to
“make an inmate do something that he does not wish to do,” (id. at 372:16-

27

Indeed, during his direct testimony, Tafari vehemently expressed his displeasure
with one of the male nurses, who apparently filed misbehavior reports that had an adverse
impact on his chances for parole. (See Tr. at 164:14-23.)

40

19)—that officer is “bound” to report that force to his supervisor.28 (Id. at
333:6-16.) In turn, the onsite supervisor ensures that “medical” sees the
inmate, and, at a minimum, that photographs are taken of him. (Id. at
333:19-334:4.) All of this information is presented to the watch commander
and is ultimately submitted to Deputy Uhler’s office for review. (See id. at
334:5-14.) At that time, Deputy Uhler looks over the report, and the video
of the event, which is “generally” available. (Id. at 334:13-17.) Depending
on what he finds, Deputy Uhler either submits the report to the
Superintendent for final approval, or to the Inspector General’s office for
additional investigation. (See id. at 334:17-335:12.) Relevantly, Deputy
Uhler knew of only one use of force report that involved Tafari, which was
filed after the van incident on February 18, 2010. (See id. at 339:25340:12.) However, he found that the force used on that day was
“appropriate,” and neither the evidence, nor the injuries Tafari sustained,
supported his claim of “a severe beating.” (Id. at 389:7-391:6.)
A similar procedure is followed if an inmate complains—at anytime, in
any manner, to anyone at the facility—that staff mistreated him. (See id. at

28

Notably, Weishaupt also testified that he found that “use of force” reports were filed
every time they were supposed to be. (Tr. at 232:10-12.)

41

335:13-337:1, 337:22-338:5.) No matter when the claim is made, an
investigation is immediately commenced; the inmate is removed from his
cell; viewed by medical staff, who complete “a one over” and documents
any injuries they see, irrespective of whether the injury is new or old; and
finally, photographs of at least the inmate’s front, back and sides are
taken.29 (Id. at 335:16-336:14.) The next day, the report is reviewed by
Deputy Uhler, and if necessary, forwarded to the Inspector General for
further investigation. (See id. at 336:15-21.)
Turning to Upstate’s video recording capabilities, Deputy Uhler
testified that the system captures audio and video throughout the facility,
which is digitally stored on roughly a fourteen-day cycle. (See id. at 345:822.) Unless a specific segment is requested, the footage is unavailable
after two weeks. (See id.) Requests for video are made through Deputy
Uhler’s office, and are done when there is a use of force, an unusual
incident or anytime an inmate “alleges force was used against him . . . [or]
a serious act of misconduct.” (Id. at 345:24-346:10.) To this end, Deputy

29

On cross-examination, Deputy Uhler reiterated that “in the normal course of
business” this procedure is followed after an inmate alleges physical abuse. (Tr. at 365:12-17.)
However, he noted that his staff would not use physical force to compel an inmate to see
medical and/or to be photographed. (See id. at 365:25-366:4.) Furthermore, photographs are
not always taken if the inmate makes his allegation “a month after” the incident occurred. (Id.
at 365:18-24.)

42

Uhler requested, and retained, the video of Tafari’s strip/frisk on April 28,
2012. (See id. at 347:12-18.) Contrary to Tafari’s claim, Deputy Uhler
testified that the video “clearly depicts” that Tafari was not sexually
assaulted by Officer Bilow.30 (Id. at 347:15-18.)
As a consequence of this baseless allegation, Tafari was, for the
second time that Deputy Uhler could recall at Upstate, “issued a
misbehavior report[] by the Inspector General’s office for lying.” (Id. at
352:7-11, 353:3-14.) Not all of Tafari’s claims, however, are easily
disproved. Indeed, Deputy Uhler explained that:
Inmate Tafari is [a] very articulate inmate, very smart, he
understands our system very well, he understands that our [video]
system is on an approximate [fourteen]-day loop. Several times,
Inmate Tafari would file a grievance that was dated outside that
two-week window and then be very upset that we weren’t
producing the videotapes for him. Can’t produce evidence that
doesn't exist anymore. Also, he would put dates on grievances
that he said he filed on a certain date. And if you look at the
grievance stamp, indeed it was received sometime later, so the
date—it would be predated . . . so that [it] would be outside the
ability for us to retain video evidence of such actions if they did
exist.

30

Despite the evolution in Tafari’s testimony regarding the events of April 28, 2012,
Deputy Uhler stated, unequivocally, that his investigation of that incident showed that Tafari
was “only frisked out one time on that day,” and the video he discussed was “the videotape of
that frisk, when [Tafari] left the visit room.” (Tr. at 381:15- 382:11.) While he acknowledged
that Tafari may have been “pulled out and talked to” in the strip/frisk area, Deputy Uhler
repeated that inmates are only frisked when they leave “their visit at the end of the day and
[are] brought back to the cell block.” (Id. at 382:5-9.)

43

(Id. at 358:6-19.) This testimony not only revealed the means Tafari
employs to complicate the investigation of his claims, but also
demonstrates the disingenuousness in his accusation that defendants’
withheld evidence that the court ordered them to produce. (See, e.g., Dkt.
No. 105 at 4-5.)
Although the court studied Deputy Uhler’s demeanor, manner and
tone throughout his testimony, it paid particular attention to these
intangibles when he was questioned about the allegations Tafari lodged
against him directly. Without equivocation, he denied: ever calling an
inmate a racial name, (see Tr. at 355:15-20.); that he had a “gang” or any
knowledge of whom Tafari was referring to, (id. at 349:10-14); being
responsible for Tafari’s transfer to Upstate, as that is a decision made
exclusively by “Class of Movement in Albany,” (id. at 342:16-23); and that
he instructed “any employee in the Department of Corrections in [twentynine] years” to assault an inmate, (id. at 332:18-20). Additionally, Deputy
Uhler stated that he would “never curtail [an] inmate’s” ability to grieve, or
to access the courts. (Id. at 350:5-12.) Finally, given his role at Upstate,
he too is frequently sued, but is “okay with that.” (Id. at 350:20-25.) To this

44

end, Deputy Uhler stated:
I know Mr. Tafari many times has mentioned that everybody, with
the exception of maybe the Commissioner, I’ve told to drop
grievances or bad things are gonna happen—or drop lawsuits or
bad things are gonna happen. To this day, I can say with [one
hundred] percent honesty, I do not know the lawsuit that Inmate
Tafari is talking to that he wants me to—that he wanted me tellin’
him to drop. I do not know what that lawsuit would be.
(Id. at 350:12-19.)
In sum, Deputy Uhler’s testimony was both credible and relevant. He
maintained composure throughout, and maintained eye contact with the
attorneys, and the court, during his examination. His answers, unlike
Tafari’s, were concise and limited to the scope of the question posed. Most
importantly though, the documentary and video evidence is entirely
consistent with Deputy Uhler’s statements during, and after, the hearing.
B.

Incidents in Question
Tafari’s claims of imminent danger can be separated into two

categories: (1) the denial of medical treatment for his various ailments; and
(2) the repeated assaults and threats by Upstate staff. Having reviewed
the entire record, the court finds that it is devoid of any evidence that
substantiates Tafari’s claims.
1.

Denial of Medical Treatment
45

With respect to Tafari’s various ailments, it is unnecessary to review
them one-by-one. Tafari himself admits that he had these conditions well
before he entered Upstate, and according to the unrefuted31 affidavit of Dr.
Richard Adams, the physician at Upstate, none of Tafari’s conditions are
life threatening. (See Dkt. No. 92, Attach. 1 ¶ 8.) Notably, Dr. Adams, who
has known Tafari since his time at Clinton, stated that he does not suffer
from photophobia vision, has not been diagnosed with Raynaud’s Disease
and “has no indicated risk of developing stomach cancer based upon his
complaints of constipation.” (Id. ¶¶ 5, 9-12, 17.) Although Tafari desires
additional treatments, such as narcotics for pain, those treatments are not
warranted. (See id. ¶¶ 14, 22.) Dr. Adams further denied that he withheld
any medically necessary treatment from Tafari, nor would he do so at the
request of other medical personnel. (See id. ¶ 20.) In sum, he averred that
Tafari has, and continues, to receive proper care and “has never been . . .
in imminent danger arising out of any long standing or current medical
31

Tafari produced three declarations/affidavits from other inmates that discussed the
special diets they receive for religious reasons; he likely did so to further his claim that he is
denied vegetarian meals. (See Dkt. No. 90 at 4-8.) However, absent the case where an
inmate was allergic to a food, or being outright starved—neither of which is even alleged
here—the court is unable to discern the relevance of this evidence. Likewise, the
declaration/affidavits from Samuel Edmonson, Ellis Douglas, Mark Braun and Nicholas Ippolito
are also immaterial, as they address, using virtually identical language, an isolated incident in
October 2009—just short of two years before the first Complaint was filed—where Tafari was
purportedly denied access to an OMH program. (See id. at 9-13.)

46

condition.” (Id. ¶¶ 21, 23.)
Dr. Adams’ affidavit is conclusive proof of three things. First, that
Tafari lied on the stand when he stated he suffered from photophobia
vision and Raynaud’s Disease. (See Tr. at 109:10, 110:18-23.) Second,
that Tafari’s ailments do not place him in imminent danger of serious
physical harm. And third, that Tafari is not being denied medical treatment.
Indeed, the volumes of medical records the court received demonstrate
that Tafari is afforded daily medical care via nurse sick call, (see generally
Dkt. No. 78), is receiving all medically necessary treatments, (see Dkt. No.
89, Attach. 5 at 2-5), and has been offered—though he does not always
accept, (see, e.g., Tr. at 306:9; Dkt. No. 78 at 90-95)—any additional
treatments that are required, (see, e.g., Dkt. No. 78, Attachs. 1-3).
2.

Misconduct by Upstate Staff

Through an exhaustive review of Tafari’s Complaints and
testimony—which were not entirely consistent, (see, e.g., Tr. at 369:1322)—the court identified thirty-seven dates on which Tafari contends he
was either threatened or assaulted. Although there was one instance
where force was used on Tafari, there was no credible evidence to support
any of Tafari’s claims. In the interest of clarity, the court will review its
47

findings date-by-date, articulating, where possible, the evidence that is
relevant to the particular date.
(1) March 31, 2009: Tafari claims he was assaulted on this
date. (See Tr. at 144:18.) His medical records do not support
his claim, as there are no medical complaints on his intake
form, and no injuries observed on his ambulatory health
records on March 31 or April 1. (See Dkt. No. 89, Attach. 1 at
2-3.) Moreover, Tafari’s grievance on this incident was denied
because no evidence was found to support his allegations, and
the staff member he named denied any misconduct. (See Dkt.
No. 89, Attach. 5 at 25-32.)
(2) April 7, 2009: Tafari alleges he was assaulted on this date.
(See Tr. at 147:10-148:8.) There is no credible evidence to
substantiate that claim.
(3) April 13, 2009: Tafari alleges he was assaulted on this
date. (See id. at 149:7-9.) Deputy Superintendent Sheahan
investigated this incident and found no evidence of staff
misconduct. (See Dkt. No. 104 at 9-15, 24-50.) There is no
other credible evidence to substantiate this claim.
(4) April 20, 2009: Tafari alleges he was assaulted on this
date. (See Tr. at 149:25-151:14.) This claim was the subject of
Investigator Weishaupt’s second investigation, at the
conclusion of which he determined the allegations were
unfounded. (See supra Part IV.A.8.) Deputy Superintendent
Sheahan also found no evidence of staff misconduct. (See Dkt.
No. 104 at 9, 24.) Furthermore, Tafari’s ambulatory health
record on the next day shows no evidence of assaultive
conduct, and states that Tafari did not even request sick call on
that day. (See Dkt. No. 78 at 82.) There is no other credible
evidence to substantiate this claim.
(5) April 24, 2009: Tafari alleges he was assaulted on this
48

date. (See Tr. at 151:23-153:20.) This claim was also deemed
baseless by Investigator Weishaupt and Deputy Superintendent
Sheahan. (See supra Part IV.A.8; Dkt. No. 104 at 9, 24.) In
addition, Tafari was on suicide watch until 4:45 P.M. on April
24; the notes of that watch do not support his claim. (See Dkt.
No. 75, Attach. 4 at 14-16.) Finally, there is no evidence of
assaultive conduct on his April 26 ambulatory health record.
(See Dkt. No. 89, Attach. 2 at 18.) There is no other credible
evidence to substantiate this claim.
(6) December 12, 2009: Tafari alleges he was threatened by
Officer Bilow on this date.32 (See Am. Compl. ¶ 8, 11-cv-1342.)
There is no credible evidence to substantiate that claim.
(7) December 26, 2009: Tafari alleges he was threatened by
Officer Bilow on this date. (See id. ¶ 10.) There is no credible
evidence to substantiate that claim.
(8) January 8, 2010: Tafari alleges he was threatened by
Officer Bilow on this date. (See id. ¶ 12.) There is no credible
evidence to substantiate that claim.
(9) February 6, 2010: Tafari alleges he was threatened by
Officer Bilow on this date. (See id. ¶ 13.) There is no credible
evidence to substantiate that claim.
(10) February 18, 2010: Tafari alleges that he sustained an
unprovoked attack in the van on the way to Ulster County
Supreme Court, and suffered multiple injuries, including: a
broken nose, broken ribs, two black eyes, lacerations on his
head and lower leg, and bruises on his face, chest, stomach,
legs, shoulders and arms. (See id. ¶¶ 14-17, 21.) The report
filed on this incident does not support Tafari’s claims.
Immediately after the incident, Nurse Gordon noted that Tafari

32

Inexplicably, Tafari did not seek to call Officer Bilow, or any other of the named
defendants who allegedly committed misconduct, at the hearing. (See Dkt. Nos. 69, 71, 83.)

49

was able to remove his clothes, bend down and remove his
boots and follow commands. (See Dkt. No. 75, Attach. 3 at 7.)
Tafari had a red mark on the top of his shoulder and superficial
scrapes on the top of his left hand. (See id.) After his spit
mask was removed, Nurse Gordon noted that Tafari had minor
facial injuries. (See id. at 20.) A subsequent examination,
which included x-rays, revealed only a fracture of the right tenth
rib. (See Dkt. No. 78 at 70.) Moreover, the officers involved
each stated that Tafari was the instigator, and force was only
used to subdue him. (See, e.g., Dkt. No. 75, Attach. 3 at 5, 1016.) Ultimately, the force used was deemed necessary by the
Superintendent. (See id. at 9.)
(11) July 23, 2010: Tafari alleges that Nurse Baker slammed
his hand in the feed hatch on this date.33 (See, e.g., 2d Am.
Compl. ¶ 20.) However, his ambulatory health record for that
day shows no evidence of swelling or injury to his hand. (See
Dkt. No. 78 at 68.) There is no other credible evidence to
substantiate this claim.
(12) July 27, 2010: Tafari alleges he was threatened by Officer
Bilow on this date. (See Am. Compl. ¶ 26, 11-cv-1342.) There
is no credible evidence to substantiate that claim.
(13) December 16, 2010: Tafari alleges that he was assaulted
after his tier hearing on this date, and suffered injuries to his
legs, chest, stomach, arms, face, back and head. (See Compl.
¶¶ 4, 7, 11-cv-1429.) However, Tafari did not report any of
these injuries during nurse sick call on December 17, and no
evidence of assaultive conduct was reported on his ambulatory
health record either. (See Dkt. No. 89, Attach. 3 at 78.) There
is no other credible evidence to substantiate this claim.
(14) December 21, 2010: Tafari alleges that he was assaulted
33

Tafari did not include Nurse Baker on any witness lists, (see Dkt. Nos. 69, 71, 83),
and explicitly stated that he did not want to call him as a witness during the pre-hearing
conference on August 23, 2012.

50

by Upstate staff on this date. (See Am. Compl. ¶ 13, 12-cv269.) However, Tafari did not report any injuries, besides his
chronic shoulder pain, on either December 21 or 22, and there
is no evidence of assaultive conduct in his ambulatory health
records for those days either. (See Dkt. No. 89, Attach. 3 at
80.) Moreover, in his grievance dated December 21, 2010,
Tafari makes no mention of the assault, though he did claim
that Deputy Uhler threatened him sometime that day. (See Dkt.
No. 104 at 215.) Following an investigation, the grievance was
deemed baseless. (See id. at 214.) There is no other credible
evidence to substantiate this claim.
(15) January 1, 2011: Tafari alleges he was threatened by
Officer Bilow on this date. (See Am. Compl. ¶ 27, 11-cv-1342.)
There is no credible evidence to substantiate that claim.
(16) January 6, 2011: Tafari alleges that he suffered multiple
injuries, including broken ribs, black eyes and a swollen face
after he was assaulted by several officers. (See, e.g., Am.
Compl. ¶¶ 4-6, 11-cv-1422.) None of the injuries Tafari claims
to have sustained were reported during nurse sick call on either
January 6 or 7, and there is no evidence of assaultive conduct
in his ambulatory health records for those days either. (See
Dkt. No. 89, Attach. 3 at 85-86.) There is no other credible
evidence to substantiate this claim.
(17) January 12, 2011: Tafari alleges that he was assaulted by
Upstate staff on this date. (See Am. Compl. ¶ 13, 12-cv-269.)
However, Tafari did not report any injuries, besides his chronic
shoulder pain, on either January 12 or 13, and there is no
evidence of assaultive conduct in his ambulatory health records
for those days either. (See Dkt. No. 78 at 57.) Moreover, in his
grievance dated January 20, 2011, Tafari makes no mention of
an assault on January 12. (See Dkt. No. 89, Attach. 5 at 3642.) There is no other credible evidence to substantiate this
claim.

51

(18) March 31, 2011: Tafari alleges that he was assaulted by
Upstate staff on this date. (See Am. Compl. ¶ 13, 12-cv-269.)
However, Tafari refused sick call on this day, and the next;
nevertheless, there is no evidence of assaultive conduct on his
ambulatory records for either day. (See Dkt. No. 89, Attach. 3
at 119.) There is no other credible evidence to substantiate this
claim.
(19) April 17, 2011: Tafari alleges that Nurse Baker slammed
his hand in the feed hatch on this date. (See 2d Am. Compl. ¶
20.) However, Tafari did not report any injuries during nurse
sick call on either April 17 or 18, and no evidence of assaultive
conduct was reported in the records. (See Dkt. No. 89, Attach.
3 at 125-26.) There is no other credible evidence to
substantiate this claim.
(20) July 26, 2011: Tafari alleges Officer King and Sergeant
Gettman watched Officer Rushlow assault him during his trip to
Wende. (See Compl. ¶¶ 4-6, 11-cv-1446.) The investigation of
Tafari’s grievance for this incident uncovered no evidence to
support his claim. (See Dkt. No. 89, Attach. 5 at 57-62.) And,
the staff involved denied the allegation. (See id. at 61.)
Moreover, Tafari did not report any injuries during nurse sick
call on July 28, and no evidence of assaultive conduct was
reported on his ambulatory health record. (See Dkt. No. 78 at
47.) There is no other credible evidence to substantiate this
claim.
(21) September 2, 2011: Tafari alleges that Nurse Baker
slammed his hand in the feed hatch on this date. (See 2d Am.
Compl. ¶ 20.) The investigation of Tafari’s grievance for this
incident uncovered no evidence to support his claim, and Nurse
Baker denied the allegation. (See Dkt. No. 104 at 91, 94-97.)
There is no other credible evidence to substantiate this claim.
(22) September 22, 2011: Tafari alleges that Officer Ferrick,
and others, assaulted him after conducting a cell frisk on this
52

date. (See Am. Compl. ¶¶ 5-7, 12-cv-662; Tr. at 170:18171:10.) The investigation of Tafari’s grievance for this
incident—which did not mention that he was
assaulted—uncovered no evidence to support his claim. (See
Dkt. No. 89, Attach. 5 at 71-74.) Additionally, the staff involved
denied the allegation. (See id. at 73.) Moreover, Tafari did not
report any injuries during nurse sick call on September 23, and
no evidence of assaultive conduct was reported on his
ambulatory health record. (See Dkt. No. 89, Attach. 4 at 4.)
There is no other credible evidence to substantiate this claim.
(23) October 17, 2011: During his trip to Auburn on this date,
Tafari alleges that Sergeant Gettman threatened him. (See
Compl. ¶ 11, 11-cv-1446.) Sergeant Gettman denied the
allegation, and the investigation of Tafari’s grievance
uncovered no evidence to support his claim. (See Dkt. No. 76,
Attach. 11.) There is no other credible evidence to substantiate
this claim.
(24) November 13, 2011: Tafari alleges he was threatened by
Nurse Baker on this date. (See 2d Am. Compl. ¶ 22.) There is
no credible evidence to substantiate that claim.
(25) November 20, 2011: Tafari alleges he was threatened by
Nurse Baker on this date. (See 2d Am. Compl. ¶ 22.) Tafari
filed a grievance that included this allegation. (See Dkt. No. 77,
Attach. 5 at 1-2.) That grievance was ultimately denied, as
there was no evidence to support Tafari’s claim, and the staff
involved denied any misconduct. (See id.) There is no other
credible evidence to substantiate this claim.
(26) November 21, 2011: Tafari alleges he was threatened by
Deputy Uhler on this date. (See Am. Compl. ¶ 14, 12-cv-269.)
There is no credible evidence to substantiate that claim.
(27) November 27, 2011: Tafari alleges he was threatened by
Nurse Baker on this date. (See 2d Am. Compl. ¶ 22.) There is
53

no credible evidence to substantiate that claim.
(28) December 4, 2011: Tafari alleges he was threatened by
Nurse Baker on this date. (See id.) Tafari filed a grievance that
included this allegation. (See Dkt. No. 77, Attach. 8.) That
grievance was ultimately denied, as there was no evidence to
support Tafari’s claim, and the staff involved denied any
misconduct. (See id.) There is no other credible evidence to
substantiate this claim.
(29) December 18, 2011: Tafari alleges he was threatened by
Nurse Baker on this date. (See 2d Am. Compl. ¶ 22.) There is
no credible evidence to substantiate that claim.
(30) December 25, 2011: Tafari alleges he was threatened by
Nurse Baker on this date. (See id.) There is no credible
evidence to substantiate that claim.
(31) January 8, 2012: Tafari alleges he was threatened by
Nurse Baker on this date. (See id.) There is no credible
evidence to substantiate that claim.
(32) January 22, 2012: Tafari alleges he was threatened by
Nurse Baker on this date. (See id.) There is no credible
evidence to substantiate that claim.
(33) January 30, 2012: Tafari alleges he was threatened by
Deputy Uhler on this date. (See Am. Compl. ¶ 15, 12-cv-269.)
There is no credible evidence to substantiate that claim.
(34) February 15, 2012: Tafari alleges that he was assaulted
by Upstate staff on this date. (See id. ¶ 13.) However, Tafari
did not report any injuries during nurse sick call on either
February 15 or 16, and no evidence of assaultive conduct was
reported in his ambulatory health records either. (See Dkt. No.
78 at 29.) There is no other credible evidence to substantiate
this claim.
54

(35) April 28, 2012: Tafari claims he was threatened by Officer
Ramsdell and then sexually assaulted by Officer Bilow during a
strip/frisk. (See, e.g., Compl. ¶¶ 4, 7, 12-cv-1062.) After a
comprehensive investigation into the grievances Tafari filed
regarding this incident,34 which included interviews with Tafari,
the staff involved and a review of the video35 for Tafari’s exit
strip/frisk, the grievance was determined to be baseless. (See
Dkt. No. 104 at 52-69, 71-88.) Moreover, Tafari did not report
any injuries during nurse sick call on April 29. (See Dkt. No. 78
at 13.) Finally, he refused to be examined by the medical staff
investigating this incident on June 5, however, a rectal exam on
June 11 was unremarkable. (See Dkt. No. 89, Attach. 5 at 8081.) There is no other credible evidence to substantiate this
claim.
(36) May 5, 2012: Tafari alleges that he was assaulted by
Officer Bilow on this date. (See Am. Compl. ¶ 28, 11-cv-1342.)
However, Tafari reported only chronic shoulder pain during
nurse sick call on May 5 and 6, and no evidence of assaultive
conduct was reported in his ambulatory health records either.
(See Dkt. No. 78 at 9.) There is no other credible evidence to
substantiate this claim.
(37) June 16, 2012: Tafari alleges he was threatened by
Officer Bilow on this date. (See Compl. ¶ 12, 12-cv-1062.)
There is no credible evidence to substantiate that claim.
C.

Summary of Findings
In sum, Tafari failed to produce a scintilla of credible evidence that

34

Notably, Tafari’s initial grievance on this incident, which was received on May 2,
2012, did not include allegations of sexual assault. (See Dkt. No. 104 at 53-55.) It was not
until a month later that Tafari added his claim that Officer Bilow penetrated him. (See id. at 8081.)
35

Having viewed the video of this incident, it is beyond reproach that Tafari’s
allegations are untrue. (See Dkt. No. 104, Ex. E.)

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corroborates any of his allegations. Instead, he manufactured his
testimony, and that of his witnesses, in an attempt to further his litigation.
Moreover, when faced with incontrovertible evidence that disproved his
claims, Tafari simply changed his story or offered additional details. On the
contrary, defendants produced volumes of records that either discredit or
disprove Tafari’s complaints. Given Tafari’s disregard for the oath he
swore when he took the stand, and his clear repudiation of his obligations
under the Federal Rules of Civil Procedure when he signed his Complaints,
the court finds that he is wholly incredible. See Fed. R. Civ. P. 11(b). It
follows that his allegations of imminent danger of serious physical injury are
baseless, as they have no evidentiary support, nor will they have such
support “after a reasonable opportunity for further investigation or
discovery.” Fed. R. Civ. P. 11(b)(3).
V. Discussion
To avoid imposition of the three strikes rule, Tafari offered two
separate, but related arguments. The first of which is that his serious
medical conditions, coupled with the denial of treatment, place him in the
requisite danger. (See Dkt. No. 112 at 4-20.) And the second is that the
pattern of threats and assaults he has been subjected to satisfies the
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standard set forth by the Circuit in Chavis, 618 F.3d at 170. (See Dkt. No.
9 at 1, 12-cv-269.) In short, the court disagrees.
To support his first argument, Tafari cites, inter alia, case law
addressing the deliberate indifference standard under the Eighth
Amendment, and an Eleventh Circuit case where the prisoner was found to
be in imminent danger after he was denied medication for HIV and
hepatitis. (See Dkt. No. 112 at 15-20); Brown, 387 F.3d at 1349-50. His
reliance on these theories is misplaced. The question here is not whether
Tafari has stated a claim, but whether he should be permitted to do so
without paying the statutory filing fee. Furthermore, his conditions, at least
those that he actually suffers from, are neither imminent, nor comparable to
the conditions cited in Brown—for example, HIV and hepatitis. While Tafari
may be in discomfort, the court concludes that as a matter of law, he is not
in imminent danger of serious physical harm as a result of his medical
conditions.36 Equally untenable is Tafari’s second argument regarding the
pattern of staff misconduct, which the court has already found does not
exist.
36

Even if there was not uncontested medical proof to refute his claim, Tafari still could
not satisfy the imminent danger standard since he suffered from these conditions for at least
three years before he commenced the lead case, and there is no evidence that the conditions
have progressed.

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It follows that because Tafari was not in imminent danger at the time
he filed any of his twelve Complaints, he may not proceed with these cases
unless he pays the statutory filing fee within thirty (30) days of the date of
this Memorandum-Decision and Order. Tafari is further advised that these
cases are no longer consolidated, which means that in order to proceed
with a particular case, he must first pay the fee in that case.
VI. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Clerk is directed to docket this MemorandumDecision and Order in the following member cases: 9:11-cv-1342; 9:11-cv1390; 9:11-cv-1422; 9:11-cv-1429; 9:11-cv-1446; 9:11-cv-1447; 9:11-cv1464; 9:11-cv-1476; 9:12-cv-269; 9:12-cv-662; and 9:12-cv-1062; and it is
further
ORDERED that the consolidation orders (Dkt. Nos. 62, 64) are
RESCINDED; and it is further
ORDERED that the stay is lifted in each of the consolidated cases;
and it is further
ORDERED that Tafari’s motions to amend his Complaints (Dkt. No.
50, 11-cv-694; Dkt. No. 11, 11-cv-1342; Dkt. No. 9, 11-cv-1422; Dkt. No.
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10, 12-cv-269; Dkt. No. 7, 12-cv-662) are GRANTED and his Amended
Complaints are deemed filed immediately; and it is further
ORDERED that the Clerk is directed to terminate the pending R&R in
12-cv-269 (Dkt. No. 8) as it is moot; and it is further
ORDERED that Tafari’s motions for leave to amend his Complaints
(Dkt. No. 107, 117) are DENIED; and it is further
ORDERED that Tafari’s requests for an extension of time to further
supplement the record (Dkt. Nos. 112, 113, 116) are DENIED; and it is
further
ORDERED that, pursuant to 28 U.S.C. § 1915(g), Tafari’s IFP status
is REVOKED in 11-cv-694, 11-cv-1390, 11-cv-1446, 11-cv-1429, 11-cv1447, 11-cv-1464, 11-cv-1476; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(g), Tafari’s motions to
proceed IFP are DENIED in 11-cv-1342 (Dkt. Nos. 2, 5); 11-cv-1422 (Dkt.
No. 2); 12-cv-269 (Dkt. No. 2); 12-cv-662 (Dkt. No. 2); 12-cv-1062 (Dkt. No.
2); and it is further
ORDERED that unless Tafari pays the $350.00 filing fee in each of
the twelve cases, within thirty (30) days of the date of this MemorandumDecision Order, that case will be DISMISSED; and it is further
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ORDERED that if Tafari fails to pay the $350.00 filing fee in a
particular case, the Clerk, without further order of the court, shall enter
judgment for defendants and close that case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
October 31, 2012
Albany, New York

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