United States District Court, W.D. New York
INJAH UNIQUE TAFARI, 89A4807, a/k/a RICHARD ORLANDO FAUST, Plaintiff,
CANDACE 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.
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE
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).
subsequently moved for summary judgment. On 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 granted Defendants'
motion to revoke Plaintiff's IFP status. 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.
sent a letter to the Court dated May 7, 2017, which the Court
has construed as a Motion for Leave to Amend the Complaint
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 allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment”). 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 omitted).
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 amended complaint for the Court's
consideration. Instead, he 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
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 well aware, to avoid bar under imminent danger
exception to “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.
foregoing reasons, Plaintiff's Motion for Leave to Amend
(Dkt #34) is denied as futile.
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
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 ...