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Injah Tafari v. Heath Baker et al

October 31, 2012

INJAH TAFARI, PLAINTIFF,
v.
HEATH BAKER ET AL., DEFENDANTS.



The opinion of the court was delivered by: 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,*fn3 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 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 Danger*fn4

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.)

1. 11-cv-694: Tafari v. Baker et al.*fn5

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.*fn6

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 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. ¶¶ 5-7.) 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.*fn7 (See id. ¶ 12.)

4. 11-cv-1422: Tafari v. Uhler et al.*fn8

After being transferred to another cell at the behest of Deputy Uhler, Tafari was gang assaulted by several officers, including Santamore, Premo 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-cv-1429.) 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.)

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.

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.*fn9

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.*fn10

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-cv-662.) 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 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 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 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 videotapes, (see id., Attachs. 2-4).

The court further ordered the parties to participate in a series of pre-hearing 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,*fn11 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),*fn12 denied his request to call certain medical experts, and, given, among other things, security concerns, limited the number of live, inmate witnesses at the hearing, (see generally Dkt. Nos. 91, 94).*fn13

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.*fn14 at 12-388.) 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,*fn15 (see Dkt. Nos. 102, 105, 107, 109, 112, 113, 114, 116, 117*fn16 ), and defendants submitted an affidavit from Donald 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."*fn17 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 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 challenged,*fn18 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 86-87. 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 evidence of record to provide detailed findings with respect to each of the alleged incidents.*fn19

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.*fn20 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 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, 22:5-15.) 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.)

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.*fn21

(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 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 ...


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