Tafari v. Baker et al
DECISION AND ORDER that Plaintiffs Motion for Leave to Amend (Dkt #34) is denied as futile; that because Plaintiff has failed to pay the filing fee within the required time, and because he has not requested an extension of time to do so, his Complain t (Dkt #1) is dismissed with prejudice; that Defendants Motion for Summary Judgment (Dkt #28) is denied as moot. Plaintiffs Motion for the Court to Provide Copies (Dkt #29)is denied as moot based on Defendants Response (Dkt #32) to that motion. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 5/30/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
INJAH UNIQUE TAFARI, 89A4807,
a/k/a RICHARD ORLANDO FAUST,
DECISION AND ORDER
-vCANDACE BAKER, JENNIFER BRINK,
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,
Proceeding pro se, Injah Unique Tafari (“Plaintiff”), an
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
adequately alleged he was in “imminent danger of serious physical
injury,” 28 U.S.C. § 1915(g).
April 20, 2017, the Court issued a Decision and Order finding that
the record evidence, which included Plaintiff’s medical records
while in the custody of DOCCS, established that Plaintiff’s claim
imminent danger cannot be substantiated. Accordingly, the Court
Plaintiff was 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 the April 20, 2017
Decision and Order. Plaintiff was advised that if he failed to
timely comply with the Court’s directive to pay the full filing
fee, his Complaint would be dismissed with prejudice by the Clerk
of Court without further order of the Court. Defendants’ summary
judgment motion was held in abeyance pending Plaintiff’s payment of
the filing fee.
Plaintiff sent a letter to the Court dated May 7, 2017, which
the Court has construed as a Motion for Leave to Amend the
Complaint (Dkt #34).
Rule 15(a) of the Federal Rules of Civil Procedure provides
that leave to amend a pleading “shall be freely given when justice
so requires.” FED. R. CIV. P. 15(a). “The Second Circuit has held
that a Rule 15(a) motion ‘should be denied only for such reasons as
undue delay, bad faith, futility of the amendment, and perhaps most
important, the resulting prejudice to the opposing party.’” Aetna
Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 603–04
(2d Cir. 2005) (quoting Richardson Greenshields Securities, Inc. v.
Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987); citing Foman v. Davis,
371 U.S. 178, 182 (1962) (reasons for denying leave include “undue
delay, bad faith, or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendment previously
Ultimately, it is “within the sound discretion of the court whether
to grant leave to amend.”
John Hancock Mut. Life Ins. Co. v.
Amerford Int’l Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citation
Here, Plaintiff does not state how he would be able to cure
the deficiencies in his previous attempt to allege facts in support
the imminent danger exception. Nor does Plaintiff submit a proposed
requests the opportunity “to prove that [he] was under imminent
danger at the time the Complaint was filed, until July 31st, 2017,
which would afford Plaintiff time to gather documents that would
refute the defendant’s affidavits, which tells [sic] a different
story than the documents in DOCCS files. . . .” (Dkt #34, p. 2 of
4 (brackets and ellipsis in original)).
The Court finds that multiple reasons to deny leave to amend
are present in this case, not the least of which is the futility of
the amendment. As Plaintiff, a frequent filer in this District, is
“three-strikes” provision, he 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. Plaintiff,
as the person who must have been in “imminent danger,” therefore is
uniquely in the position to have first-hand knowledge of the
circumstances giving rise to the alleged “imminent danger.” Here,
Plaintiff concedes that he is unable to make this showing, since
his current motion is simply a discovery request to conduct what is
essentially a “fishing expedition,” masquerading as a Rule 15(a)
motion to amend.
For the foregoing reasons, Plaintiff’s Motion for Leave to
Amend (Dkt #34) is denied as futile.
Because Plaintiff has failed to pay the filing fee within the
required time, and because he has not requested an extension of
time to do so, his Complaint (Dkt #1) is dismissed with prejudice.
Defendants’ Motion for Summary Judgment (Dkt #28) is denied as
moot. Plaintiff’s Motion for the Court to Provide Copies (Dkt #29)
is denied as moot based on Defendants’ Response (Dkt #32) to that
The Clerk of Court is directed to close this case.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
May 30, 2017
Rochester, New York
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