Tafari v. Prack et al

Filing 14

MEMORANDUM-DECISION AND ORDER: ORDERED that the Clerk is directed to withdraw 6 Report and Recommendation. ORDERED that 8 Report and Recommendation is adopted in its entirety. ORDERED that 2 Motion for Leave to Proceed in forma pauperis is denied. ORDERED that this case is DISMISSED unless Tafari pays the $350.00 filing fee within thirty (30) days of the date of this Memorandum-Decision Order; ORDERED that if Tafari fails to pay the $350.00 filing fee within thirty (30 ) days of the date of this Memorandum-Decision and Order, the Clerk shall enter judgment for defendants and close this case. ORDERED that 11 Motion for Preliminary Injunction is denied with leave to renew pending the payment of the filing fee. Signed by Chief Judge Gary L. Sharpe on 7/2/12. {order served via regular mail on plaintiff}(nas)

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

9:12-cv-703
(GLS/ATB)

v.
ALBERT PRACK et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
InJah Tafari
Pro Se
89-A-4807
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
FOR THE DEFENDANTS:
NO APPEARANCE1
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se InJah Tafari brings this action under 42 U.S.C. §

1

Service on defendants has not yet been permitted as this case comes to the court as
part of the preliminary review under 28 U.S.C. § 1915.

1983, alleging his constitutional rights were violated by defendants. (See
Am. Compl., Dkt. No. 7.) In an Amended Report-Recommendation and
Order (R&R) filed May 23, 2012,2 Magistrate Judge Andrew T. Baxter
recommended that Tafari’s motion to proceed in forma pauperis (IFP),
(Dkt. No. 2), be denied pursuant to 28 U.S.C. § 1915(g).3 (See generally
R&R, Dkt. No. 8.) Pending are Tafari’s objections to the R&R and his
motion for a preliminary injunction/temporary restraining order (PI/TRO).
(See Dkt. Nos. 10, 11.) For the reasons that follow, the R&R is adopted in
its entirety and the motion for a PI/TRO is denied with leave to renew after
Tafari pays the requisite filing fee.
II. Standard of Review
Before entering final judgment, this court routinely reviews all reportrecommendation and orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.

2

The clerk is directed to withdraw the previous R&R. (See Dkt. No. 6.)

3

The Clerk is directed to append the R&R to this decision, and familiarity therewith is
presumed.

2

Civ. 904CV484GLS, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006).
Where no party has filed an objection, only vague or general objections are
made, or a party resubmits the same papers and arguments already
considered by the magistrate judge, this court reviews the findings and
recommendations of the magistrate judge for clear error. See id. at *4-5.
III. Discussion
Tafari’s “objections” consist of factual assertions and legal citations
already considered by Judge Baxter. (See Dkt. No. 10 at 2-6.) These
mere reassertions are insufficient to warrant de novo review, see Almonte,
2006 WL 149049, at *4-5, and, more importantly, immaterial, as they fail to
appreciate the principal basis of Judge Baxter’s decision—that is, the lack
of nexus between the imminent danger and the unlawful conduct
underlying Tafari’s Amended Complaint, (see R&R at 5-9). Simply put, the
alleged assaults and threats that form the basis of Tafari’s imminent
danger claim are not “fairly traceable to [the] unlawful conduct asserted in
the [Amended Complaint].” Pettus v. Morgenthau, 554 F.3d 293, 299 (2d
Cir. 2009); (see Am. Compl. at 3-8.) As such, having found no clear error
in the R&R, the court accepts and adopts Judge Baxter’s R&R in its

3

entirety.4
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to withdraw the previous ReportRecommendation and Order (Dkt. No. 6); and it is further
ORDERED that Magistrate Judge Andrew T. Baxter’s May 23, 2012
Amended Report-Recommendation and Order (Dkt. No. 8) is ADOPTED in
its entirety; and it is further
ORDERED that Tafari’s motion to proceed in forma pauperis (Dkt.
No. 2) is DENIED pursuant to 28 U.S.C. § 1915(g); and it is further
ORDERED that this case is DISMISSED unless Tafari pays the
$350.00 filing fee within thirty (30) days of the date of this MemorandumDecision Order; and it is further
ORDERED that if Tafari fails to pay the $350.00 filing fee within thirty
(30) days of the date of this Memorandum-Decision and Order, the Clerk
shall enter judgment for defendants and close this case; and it is further
ORDERED that Tafari’s motion for a PI/TRO (Dkt. No. 11) is DENIED

4

In light of the court’s decision to deny Tafari IFP status, his motion for a PI/TRO is
denied with leave to renew after the filing fee is paid. (See Dkt. No. 11.)

4

with leave to renew pending the payment of the filing fee; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
July 2, 2012
Albany, New York

5