Tafari v. Baker et al

Filing 33

DECISION AND ORDER granting Defendants motion to revoke Plaintiffs IFP status. Plaintiff is ordered to pay the full $400 filing fee, with credit to be afforded for any amounts previously collected from his prison account, within (30) thirty days of the date of this Decision and Order. Furthermore, if Plaintiff fails to timely comply with the Courts directive to pay the full filing fee, his Complaint will be dismissed with prejudice by the Clerk of Court without further order of the Court. T he Court will hold Defendants summary judgment motion in abeyance pending Plaintiffs payment of the filing fee. If Plaintiff timely pays the full filing fee, the Court then will consider Defendants summary judgment motion. If not, his Complaint will be dismissed. (Copy of Decision and Order sent by first class mail to Plaintiff.). Signed by Hon. Michael A. Telesca on 4/20/17. (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”), an
inmate

in

the

custody

of

the

New

York

State

Department

of

Corrections and Community Supervision (“DOCCS”), instituted this
action pursuant to 42 U.S.C. § 1983 while he was an inmate at
Elmira Correctional Facility (“ECF”), alleging that the defendants,
who are employees and representatives of ECF, denied him adequate
medical care in violation of his Eighth Amendment rights. On
initial screening of the Complaint, Plaintiff—who has garnered
“three strikes” under 28 U.S.C. § 1915(g)—was granted leave to
proceed

in

forma

pauperis

(“IFP”)

on

the

basis

that

he

had

adequately alleged he was in “imminent danger of serious physical
injury,” 28 U.S.C. § 1915(g).
On January 19, 2017, the Court issued a Decision and Order
denying Plaintiff’s Motion for a TRO/Preliminary Injunction as
moot, since he was no longer at ECF,1 and denying his Motion for
Appointment of Counsel without prejudice. In the same Decision and
Order, the Court denied Defendants’ Motion to Revoke IFP Status and
Dismiss the Complaint; this denial was without prejudice and with
leave to renew as a converted motion for summary judgment, upon
provision of the appropriate notice to Plaintiff.
Defendants now have filed a combined Motion for Summary
Judgment and to Revoke IFP Status. For the reasons discussed below,
Defendants’ motion seeking revocation of Plaintiff’s IFP status is
granted.

Defendants’

motion

for

summary

judgment

is

abeyance pending Plaintiff’s payment of the filing fee.

held

in

Should

Plaintiff pay the full filing fee, the Court will proceed to decide
Defendants’ request for summary judgment. Should Plaintiff fail to
pay the full filing fee, the Complaint will be dismissed with
prejudice without any further action by this Court.

1

Plaintiff is presently housed at Attica Correctional Facility. See
DOCCS Inmate Information, available at
http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ1/WINQ000 (last accessed Apr.
17, 2017).

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DISCUSSION
I.

28 U.S.C. § 1915(g)
Defendants seek revocation of Plaintiff’s IFP status under 28

U.S.C. § 1915(g), which bars prisoners from proceeding IFP after
three or more previous claims have been dismissed as frivolous,
malicious,

or

for

failing

to

state

a

claim.

See

28

U.S.C.

§ 1915(g).2 A prisoner who has “three strikes” may only proceed IFP
if

he

can

avail

himself

of

Section

1915(g)’s

“safety

valve”

provision, by showing that he is “under imminent danger of serious
physical injury[,]” 28 U.S.C. § 1915(g), at the time he files the
complaint. Chavis v. Chappius, 618 F.3d 162, 169 (2d Cir. 2010).
The Second Circuit has explained that “[a]n imminent danger is not
one ‘that has dissipated by the time a complaint is filed,’” id.
(quoting Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009)).
“[R]ather it must be one ‘existing at the time the complaint is
filed,’” id. (quoting Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir.
2002)).

2

There is no question that Plaintiff had accrued “three-strikes” as of the
date of filing this lawsuit. E.g., Tafari v. Rock, No. 1:11-cv-00057(MAT),
4/24/12 Order (Dkt. #11) at 3 (citing Tafari v. Aidala, No. 1:00-cv-00405
(W.D.N.Y. Sept. 28, 2001) (dismissing complaint with prejudice for failure to
state claim, and certifying that any appeal would not be taken in good faith);
Tafari v. Aidala, No. 01-0279 (2d Cir. Apr. 5, 2002) (dismissing appeal from
Tafari v. Aidala, No. 1:00-cv-00405 (W.D.N.Y. Sept. 28, 2001), as frivolous);
Tafari v. France, No. 06-1876 (2d Cir. Nov. 2, 2006) (dismissing appeal from
Tafari v. France, No. 1:01-cv-00011 (W.D.N.Y. Mar. 10, 2006), as frivolous);
Tafari v. Stein, 09-0710-pr(L), 09-2288-pr (Con.) (2d Cir. Nov. 13, 2009)
(dismissing appeal from Tafari v. Stein, No. 1:01-cv-00841 (W.D.N.Y. Feb. 12,
2009), as lacking an arguable basis in law or fact)).

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II.

IFP Status Should Be Revoked
The Court is mindful that in determining whether a plaintiff

has sufficiently demonstrated “imminent danger,” the Second Circuit
has cautioned courts to “‘not make an overly detailed inquiry into
whether

the

allegations

qualify

for

the

exception,’

because

§ 1915(g) ‘concerns only a threshold procedural question.’” Chavis,
618 F.3d at 169 (quoting Malik, 293 F.3d at 563). However, courts
in

this Circuit

have

revoked

becoming aware that the

a

plaintiff’s

IFP

status

after

plaintiff has three prior strikes and

cannot show that he was under “imminent danger of serious physical
injury” at the time of filing the complaint. See, e.g., Abreu v.
Lira, No. 9:12-CV-1385 NAM/DEP, 2014 WL 4966911, at *1 (N.D.N.Y.
Sept.
No.

30,

2014),

9:12-CV-1385

defendants’

adopting

NAM/DEP

request

and

report

and
11,

recommendation,

(N.D.N.Y.

Apr.

2014)

reversing

preliminary

(granting

finding

that

plaintiff-inmate was entitled to the imminent harm exception to the
“three

strikes”

rule

of

28

U.S.C.

§

1915(g);

and

revoking

plaintiff-inmate’s IFP status; and directing payment of full filing
fee before proceeding with action); McFadden v. Parpan, 16 F.
Supp.2d

246,

improvidently

247

(E.D.N.Y.

granted

because

1998)

(revoking

complaint

does

IFP
not

status
allege

as
that

plaintiff is in imminent danger of serious physical injury, nor
could plaintiff make such an allegation on the facts asserted)
(citing Banos v. O’Guin, 144 F.3d 883, 884 (5th Cir. 1998) (to

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avoid

bar

under

imminent

danger

exception

to

“three-strikes”

provision, prisoner must be in imminent danger at time he seeks to
file suit in district court, rather than at time of the alleged
incident that serves as basis for the complaint); other citation
omitted)). To revisit a preliminary finding that a three-strikes
plaintiff satisfies the imminent danger exception, the court may
look outside the four corners of the complaint. Abreu v. Lira, 2014
WL 4966911, at *7 (citing Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir.
1997) (“If the defendant, after service, challenges the allegations
of imminent danger . . ., the district court must then determine
whether the plaintiff’s allegation of imminent danger is credible
. . . in order for the plaintiff to proceed on the merits [IFP].”),
overruled on other grounds by Abdul–Akbar v. McKelvie, 239 F.3d
307, 312 (3d Cir. 2001); Stine v. U.S. Fed. Bureau of Prisons, 465
F. App’x 790, 794 n.4 (10th Cir. 2012) (“[A]fter a district court
provisionally grants IFP on the basis of a showing of imminent
danger, the defendants are permitted to mount a facial challenge,
based on full development of the facts, to the district court’s
provisional determination on the face of the complaint that [the
prisoner] satisfies the imminent danger element.”) (quotation marks
omitted, emphasis and alteration in original)). The Court finds
persuasive

the

analysis

by

the

district

court

(Mordue,

D.J./Peebles, M.J.) concluding that
the Second Circuit’s suggestion in Chavis that courts
should restrict their attention to the four corners of a
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complaint in connection with an imminent-danger inquiry
applies only to the court’s initial review of the
complaint. The Second Circuit was not asked in Chavis to
consider how a court should approach a defendant’s
subsequent challenge to an imminent-danger finding, nor
was it asked to analyze evidence adduced after the
complaint was filed that may refute a court’s initial
finding that the complaint plausibly alleged facts
suggesting plaintiff was in imminent danger of a serious
physical injury at the time the action was commenced.
Abreu v. Lira, 2014 WL 4966911, at *7; see also id. at *8-10
(finding that the defendants had presented sufficient facts to
reverse its preliminary finding that the imminent danger exception
applied after considering affidavits submitted by prison medical
staff

who

treated

plaintiff

during

the

relevant

period,

in

conjunction with the plaintiff’s medical records).
Plaintiff’s case presents a similar situation to that in Abreu
v. Lira, supra. In his Complaint, Plaintiff states that he “is
still suffering Chronic Constipation, Vomiting with blood in his
Urine and Feces which is extremely painful daily. Imminent Danger
lays here.”

(Complaint

(“Comp.”)

(Dkt

#1) ¶

30;

capitals

in

original; emphasis added). Plaintiff asserts that the treatment for
this alleged condition is a vegetarian diet (Id. ¶ 6(d)), which was
allegedly ordered by primary care physician Dr. Peter Braselmann
(Id. ¶ 7(a)). Specifically, Plaintiff asserts that on April 16,
2015, he saw Dr. Braselmann for his initial chart review and
physical examination, at which time the doctor allegedly wrote out
the following orders: “(a) Control A Vegetarian diet; (b) Flexeril
10 mg 3x, 30 days; (c) Eucerin cream; and (d) Vitamin E Lotion.”
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(Comp. ¶ 7(a)-(d)). Plaintiff asserts that the denial of the
vegetarian diet has caused “chronic constipation with vomiting and
blood in urine and rectal, . . . [and] excruciating pain in the
stomach, penis and anal daily.” (Id. ¶ 17). However, the medical
records,3

as

well

as

Dr.

Braselmann’s

declaration

fail

to

substantiate Plaintiff’s allegation that Dr. Braselmann “ordered”
that he be placed on a “vegetarian” diet. In his declaration, Dr.
Braselmann states that he saw Plaintiff on April 16, 2015, but did
not place him on a vegetarian diet, and in fact, advised him that
there was no vegetarian diet available at ECF. (See Braselmann
Decl. ¶ 6). This is corroborated by the Ambulatory Health Record
Progress Note (“AHRPN”) from April 16, 2015, which indicates that
Plaintiff

“state[d]

GAS

[gastroenterologist]

wants

him

on

vegetarian diet which he’s received [at] other prisons. Told [him]
not available here.”4 The AHRPN dated April 16, 2015, indicates
that Plaintiff was on the facility’s kosher diet; the “provider
[i.e., Dr. Braselmann] prefers he be on Controlled A diet” but he
“cannot be on both.”
Most

importantly,

Plaintiff’s

allegations

of

daily

constipation, vomiting, blood in his urine, rectal bleeding, and

3

These records are attached as Exhibits to the Declaration of Peter
Braselmann, M.D. (“Braselmann Decl.”) (Dkt #17-2).
4

Plaintiff had been informed 10 days earlier by P. Austin, R.N. (“Nurse
Austin”) that there were “NO vegetarian or vegan diets here [at] [Elmira
Correctional Facility].”

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stomach pain, are not borne out by the medical records. As noted
above, the “imminent danger of serious physical injury,” 28 U.S.C.
§ 1915(g), must be present at the time the inmate files his
complaint. Here, Plaintiff filed his Complaint, pursuant to the
prison mailbox rule, on June 30, 2016. The AHRPNs for the month of
June (See Dkt #17-2) indicate that Plaintiff was seen on by medical
staff on June 1, 3, 4, 5, 8, 9, 11, 12, 13, 14, 15, 18, 19, 22, 23,
25, 29, and 30. Conspicuously absent from these medical records are
any mention by Plaintiff or his medical providers of constipation,
vomiting, bloody urine, rectal bleeding, or stomach pain. In fact,
Plaintiff

frequently

verbalized

no

physical

complaints.

(See

Dkt #17-2 (AHRPNs dated 6/12/15; 6/13/15)). When he did voice
complaints, they concerned other medical issues that plainly did
not present an “imminent danger of serious physical injury,” such
as Plaintiff’s request for a special shampoo for his Bowenoid
papulosis,5 or for Flexeril or Tylenol for his shoulder pain. (See

5

Plaintiff complained about inadequate treatment for Bowenoid papulosis in
at least one of his prior lawsuits. See Tafari v. Weinstock, No. 07CV0693, 2010
WL 3420424, at *5 (W.D.N.Y. Aug. 27, 2010). There, the Court (Scott, M.J.) noted
that primary defendant, Dr. Weinstock, examined Plaintiff and found that there
was no recurrence of the premalignant lesions, with which Plaintiff had been
diagnosed in 1998. Dr. Weinstock referred Plaintiff to a dermatologist, Dr.
Zaneder Miranda, who confirmed that the condition had not recurred, but
nevertheless recommended the vitamins, showers with specific soap and shampoo,
jock strap and cotton mattresses requested by Plaintiff. Dr. Weinstock declined
to provide the items recommended by the dermatology consultant, stating that
these recommendations bore no relationship to Bowenoid papulosis, that “[t]he
absence of the condition after several years is proof of its successful treatment
and eradication[,]” and that Dr. Miranda had confirmed his conclusion that the
condition was cleared. Id. (citation to record omitted). The postinflammatory
hypopigmentation complained of by Plaintiff was “simply a benign scarring
manifested by loss of skin pigment and requires no intervention.”
Id. Furthermore, “[n]one of [Dr. Miranda’s] recommendations would have any

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Dkt #17-2 (AHRPNs dated 6/12/15; 6/18/15; 6/19/15)). Although
Plaintiff apparently was staging a hunger strike during this
period, the nurses consistently noted that his mucous membranes
were moist, he ambulated without difficulty, and his gait was
steady. (See Dkt #17-2 (AHRPNs dated 6/8/15/ 6/9/15; 6/11/15;
6/12/15)).
In short, at the time Plaintiff filed his Complaint, he was
not suffering from a condition that placed him in imminent danger
of serious physical injury. The Court notes that the lack of a
vegetarian diet and the constipation this allegedly causes has been
previously determined not to be a serious medical problem. In one
of

Plaintiff’s

previous

lawsuits,

Tafari

v.

Weinstock,

No. 07CV0693, 2010 WL 3420424 (W.D.N.Y. Aug. 27, 2010), he claimed
that Dr. Weinstock violated his rights by failing to direct that he
receive a vegetarian diet due to a purported food allergy which
alleged caused him to experience constipation, vomiting and stomach
pain.

Id. at *6 (citation to record omitted). The Court (Scott,

M.J.) there held that Plaintiff had failed to establish that he had
been denied a medically prescribed diet. However, even assuming
that he had, Plaintiff had “not presented evidence in the record

influence upon the development of Bowenoid papulosis (warty growths caused by
viral infection with the human papillomavius—HPV).” Id. (citation to record
omitted). Magistrate Judge Scott found that “Dr. Weinstock’s failure to provide
the plaintiff with vitamins or the brand of soap and shampoo desired by the
plaintiff does not constitute deliberate indifference to a serious medical need.”
Id.

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from which

a

reasonable

fact

finder

could

conclude

that the

symptoms alleged . . . . represented a condition of urgency or
resulted in degeneration or extreme pain sufficient to implicate an
Eighth Amendment violation on the part of Dr. Weinstock.”

Id. at

*7. Plaintiff’s repackaged 2016 allegations in this lawsuit about
the

medical

issues

stemming

from

the

purported

denial

of

a

vegetarian diet add nothing to what was presented to Magistrate
Judge Scott in 2010, who found that Plaintiff was not suffering
from a “serious medical need” as a result. Taking the entire record
into account, including Plaintiff’s submissions thus far in this
action (which include many years of medical records), viewed in
conjunction with Dr. Braselmann’s declaration, the Court concludes
that Plaintiff was not suffering any medical condition that would
support a finding of imminent danger of serious physical injury at
the time he filed the Complaint. Indeed, as noted above, the
specific symptoms cited his Complaint that allegedly created the
“imminent danger” are not mentioned in the contemporaneous medical
records. Therefore, the Court concludes that Plaintiff is not
entitled to the imminent-danger exception to the three-strikes rule
under Section 1915(g). If he desires to continue to prosecute this
lawsuit, he must pay the full filing fee.
CONCLUSION
For the foregoing reasons, the Court finds that the record
evidence, which includes Plaintiff’s medical records while in the

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custody of DOCCS, establishes that the Court’s preliminary finding
of imminent danger cannot be substantiated. Accordingly, the Court
grants

Defendants’

motion

to

revoke

Plaintiff’s

IFP

status.

Plaintiff is ordered to pay the full $400 filing fee, with credit
to be afforded for any amounts previously collected from his prison
account, within (30) thirty days of the date of this Decision and
Order. Furthermore, if Plaintiff fails to timely comply with the
Court’s directive to pay the full filing fee, his Complaint will be
dismissed with prejudice by the Clerk of Court without further
order of

the

Court.

The

Court

will

hold

Defendants’

summary

judgment motion in abeyance pending Plaintiff’s payment of the
filing fee. If Plaintiff timely pays the full filing fee, the Court
then will consider Defendants’ summary judgment motion. If not, his
Complaint will be dismissed.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 20, 2017
Rochester, New York

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