Tafari v. Baker et al

Filing 25

DECISION AND ORDER denying 17 Motion ; denying 17 Motion to Stay; denying 5 Motion to Appoint Counsel ; finding as moot 5 Motion for TRO; finding as moot 5 Motion for Preliminary Injunction; finding as moot 6 Motion to Stay; denying 17 Motion to Dismiss without prejudice with leave to renew as a converted motion for summary judgment, upon provision of the appropriate notice to Plaintiff. Signed by Hon. Michael A. Telesca on 1/19/17. (clerk to follow up consistent with this Decision and Order. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

INJAH UNIQUE TAFARI, 89A4807,
a/k/a RICHARD ORLANDO FAUST,
Plaintiff,
DECISION AND ORDER
6:16-cv-06472(MAT)

-vCANDACE BAKER, JENNIFER BRINK,
ZEBRA CICCONI-CROZIER,
MAUREEN MACK, GARY TAYLOR,
JILL NORTHROP, PETER BRASELMANN,
GREGORY KELLER, PAUL PICCOLO,
JEFFREY MINNERLY, MICHAEL
KIRKPATRICK, RAYMOND COVENY,
PAUL CHAPPIUS,CARL KOENIGSMANN,
and ANTHONY ANNUCCI,
Defendants.

INTRODUCTION
Proceeding

pro

se,

Injah

Unique

Tafari

(“Plaintiff”),

instituted this action pursuant to 42 U.S.C. § 1983 while he was an
inmate at Elmira Correctional Facility (“Elmira CF”), alleging that
the defendants, who are employees and representatives of the
New York State Department of Corrections and Community Supervision
(“DOCCS”), denied him adequate medical care in violation of his
Eighth Amendment rights.
Presently

pending

before

the

Court

is

Plaintiff’s

“Consolidated Motion for the Appointment of Counsel, TRO and
Preliminary
Consolidated

Injunction”
Motion

for

(Dkt
the

#5),

and

Appointment

“Motion
of

to

Counsel,

Stay

the

TRO

and

Preliminary Injunction” (Dkt #6), which includes a request to allow
him to submit relevant documentary evidence and to “direct the
defendants and/or their agents, to provide [P]laintiff copies of
his medical records free of charge. . . .” (Dkt #6, p. 2 of 4).
Defendants

have

opposed

the

request

for

a

TRO/Preliminary

Injunction, and have moved to revoke Plaintiff’s in forma pauperis
status and to dismiss the Complaint unless Plaintiff pays the full
filing fee.
DISCUSSION
I.

“Consolidated Motion for the Appointment of Counsel, TRO and
Preliminary Injunction”
A.

TRO/Preliminary Injunction

Defendants oppose Plaintiff’s request for a TRO/Preliminary
Injunction on the grounds that it is moot and, in the alternative,
that Plaintiff has failed to make the requisite showing. As to the
mootness issue, Defendants note that Plaintiff left Elmira CF on
August 3, 2016. He is presently housed at Auburn Correctional
Facility, which is where he filed the motion for a TRO/preliminary
injunction. However, the alleged failure to provide medical care
occurred at Elmira CF.

“It is settled in this Circuit that a

transfer from a prison facility moots an action for injunctive
relief against the transferring facility.” Prins v. Coughlin, 76
F.3d 504, 506 (2d Cir. 1996) (citations omitted). Since Tafari is
no longer incarcerated at Elmira CF, his demand for injunctive

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relief against the Elmira CF defendants-employees is moot. See id.;
see also Tafari v. Weinstock, No. 07CV0693, 2010 WL 3420424, at *9
(W.D.N.Y. Aug. 27, 2010) (finding that plaintiff’s request for
injunctive relief based on denial of medical care was mooted based
on his facility transfer).
B.

Appointment of Counsel

Plaintiff has asked the Court to appoint counsel to represent
him free of charge in this matter. In determining whether to
appoint pro bono counsel in a civil case, the court must determine,
as a threshold issue, whether the indigent’s position seems likely
to be of substance. Hodge v. Police Officers, 802 F.2d 58, 61-62
(2d Cir. 1986). Based on its review of the pleadings and documents
filed to date, the Court does not find that Tafari’s “position
seems likely to be of substance.” Id. at 61. Therefore, the Court
denies without prejudice Plaintiff’s request for the appointment of
pro bono counsel.
In

light

Consolidated

of

Motion

the

Court’s

for

the

disposition

Appointment

of

of

Plaintiff’s

Counsel,

TRO

and

Preliminary Injunction, his Motion to Stay the Consolidated Motion
is moot.
II.

Defendants’ Motion to
Dismiss the Complaint

Revoke

Plaintiff’s

IFP

Status and

Defendants request that this Court reverse its preliminary
finding that Plaintiff was entitled to the “imminent danger”
exception to the “three strikes” rule of 28 U.S.C. § 1915(g);
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revoke Plaintiff’s in forma pauperis (“IFP”) status; and dismiss
the Complaint unless Plaintiff pays the filing fee.
When a civil action is commenced in a federal district court,
the statutory filing fee, set at $400 at the time Plaintiff filed
this action,1 must ordinarily be paid. 28 U.S.C. § 1915(a). Section
1915 provides in pertinent part as follows:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
28 U.S.C. § 1915(g) (emphasis supplied). It is undisputed that
Plaintiff has well over “3 strikes.” See, e.g., Tafari v. Baker,
No. 9:11-CV-694 GLS/ATB, 2012 WL 5381235, at *4 (N.D.N.Y. Oct. 31,
2012). Indeed, Tafari is a repeat filer, with an “extensive history
of vexatious litigation[,]” id., in this and other districts. Id.
(noting that Tafari “was subject to the three strikes provision at
the time he commenced each of the [twelve] consolidated cases”).
In support of their motion to revoke Plaintiff’s IFP status
and dismiss the Complaint if Plaintiff does not pay the filing fee,

1

“Effective May 1, 2013, the Judicial Conference increased the
fee for commencing an action in a federal district court from $350
to $400 by adding a $50 administrative fee.” Abreu v. Lira, No.
9:12-CV-1385 NAM/DEP, 2014 WL 4966911, at *4 n. 7 (N.D.N.Y.
Sept. 30, 2014).
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Defendants argue that Plaintiff was, and continues to be, provided
with extensive and appropriate medical care and suitable dietary
alternatives

to

regular

DOCCS

meals.

They

have

submitted

declarations from Gary Taylor, the Food Service Administrator at
Elmira CF; and Dr. Peter Braselmann (“Dr. Braselmann”), Clinical
Physician II at Elmira CF; as well as copies of Plaintiff’s
grievances about his medical care and dietary choices, and the
associated Central Office Review Committee (“CORC”) determinations
on those grievances; and copies of some of Plaintiff’s medical
records

pertaining

to

his

medical

treatment

at

Elmira

CF.

Defendants’ motion thus is more akin to a motion for summary
judgment on Plaintiff’s deliberate medical indifference claims. The
Second Circuit, however, has discouraged courts from “‘mak[ing] an
overly detailed inquiry into whether the allegations qualify for
the exception,’ because § 1915(g) ‘concerns only a threshold
procedural question.’” Chavis v. Chappius, 618 F.3d 162, 169
(2d Cir. 2010) (quoting Malik v. McGinnis, 293 F.3d 559, 563
(2d

Cir.

2002));

see

also

Green

v.

Venettozzi,

No.

14-CV-1215(BKS/CFH), 2016 WL 6902545, at *3 (N.D.N.Y. Oct. 31,
2016) (declining to “recommend revoking plaintiff’s IFP status, as
this matter has yet to move past the pleading stage”), report and
recommendation
(N.D.N.Y.

Nov.

adopted,
23,

No.

2016)

914CV1215BKSCFH,
(citing

Williams

2016
v.

WL

6902180

Fisher,

No.

9:11-CV-379 (NAM/TWD), 2013 WL 636983, at *10 (N.D.N.Y. Jan. 29,

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2013) (declining to disturb preliminary finding of imminent danger
where the defendants attacked the plaintiff’s claims on their
merits)).
Following Green and Williams, the Court will refrain from
disturbing its preliminary finding of imminent danger. Instead, the
Court will convert Defendants’ motion to revoke IFP status and
dismiss the Complaint into a motion for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. However, before
“a court converts a motion to dismiss to a motion for summary
judgment, ‘the rule requires that the court give sufficient notice
to

an

opposing

party

and

an

opportunity

for

that

party

to

respond.’” Savage v. OFC. Michael Acquino, No. 13-CV-6376, 2016 WL
5793422, at *8 (W.D.N.Y. Sept. 30, 2016) (quoting Hernandez v.
Coffey, 582 F.3d 303, 307–08 (2d Cir. 2009)); see also W.D.N.Y.
Local Rule of Civil Procedure 56.2 (implementing mandatory summary
judgment notice requirements). Because the court-required

notice

has not been provided to Tafari, the Court will deny Defendants’
motion to revoke IFP status and dismiss the Complaint without
prejudice with leave to renew as a converted motion for summary
judgment, upon provision of the appropriate notice to Tafari. See
Savage, 2016 WL 5793422, at *8. To that end, the Court is attaching
to this Decision and Order a copy of the court-required Irby
Notice, and Defendants are instructed to attach the same to their
moving

papers.

Upon

Defendants’

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re-filing

of

their

converted

summary judgment motion, the Court will set a scheduling order.
Should Plaintiff believe that he is unable to present facts needed
to justify his opposition to summary judgment, he must file an
affidavit or declaration pursuant to Rule 56(d) of the Federal
Rules of Civil Procedure.
CONCLUSION
For the reasons discussed above, Plaintiff’s Motion for a
TRO/Preliminary Injunction is denied as moot. Plaintiff’s Motion
for Appointment of Counsel is denied without prejudice. Plaintiff’s
Motion to Stay his Motion for a TRO/Preliminary Injunction and
Motion for Counsel is moot. Defendants’ Motion to Revoke IFP Status
and Dismiss the Complaint is denied without prejudice with leave to
renew as a converted motion for summary judgment, upon provision of
the appropriate notice to Plaintiff.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

January 19, 2017
Rochester, New York

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