Opinion
9:12-cv-703
07-02-2012
INJAH TAFARI, Plaintiff, v. ALBERT PRACK et al., Defendants.
APPEARANCES: FOR THE PLAINTIFF: InJah Tafari Pro Se 89-A-4807 Upstate Correctional Facility FOR THE DEFENDANTS: NO APPEARANCE 1 OF COUNSEL:
(GLS/ATB)
APPEARANCES:
FOR THE PLAINTIFF:
InJah Tafari
Pro Se
89-A-4807
Upstate Correctional Facility
FOR THE DEFENDANTS:
Service on defendants has not yet been permitted as this case comes to the court as part of the preliminary review under 28 U.S.C. § 1915.
OF COUNSEL: Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se InJah Tafari brings this action under 42 U.S.C. § 1983, alleging his constitutional rights were violated by defendants. (See Am. Compl., Dkt. No. 7.) In an Amended Report-Recommendation and Order (R&R) filed May 23, 2012, Magistrate Judge Andrew T. Baxter recommended that Tafari's motion to proceed in forma pauperis (IFP), (Dkt. No. 2), be denied pursuant to 28 U.S.C. § 1915(g). (See generally R&R, Dkt. No. 8.) Pending are Tafari's objections to the R&R and his motion for a preliminary injunction/temporary restraining order (PI/TRO). (See Dkt. Nos. 10, 11.) For the reasons that follow, the R&R is adopted in its entirety and the motion for a PI/TRO is denied with leave to renew after Tafari pays the requisite filing fee.
The clerk is directed to withdraw the previous R&R. (See Dkt. No. 6.)
The Clerk is directed to append the R&R to this decision, and familiarity therewith is presumed.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report-recommendation and orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). Where no party has filed an objection, only vague or general objections are made, or a party resubmits the same papers and arguments already considered by the magistrate judge, this court reviews the findings and recommendations of the magistrate judge for clear error. See id. at *4-5.
III. Discussion
Tafari's "objections" consist of factual assertions and legal citations already considered by Judge Baxter. (See Dkt. No. 10 at 2-6.) These mere reassertions are insufficient to warrant de novo review, see Almonte, 2006 WL 149049, at *4-5, and, more importantly, immaterial, as they fail to appreciate the principal basis of Judge Baxter's decision—that is, the lack of nexus between the imminent danger and the unlawful conduct underlying Tafari's Amended Complaint, (see R&R at 5-9). Simply put, the alleged assaults and threats that form the basis of Tafari's imminent danger claim are not "fairly traceable to [the] unlawful conduct asserted in the [Amended Complaint]." Pettus v. Morgenthau, 554 F.3d 293, 299 (2d Cir. 2009); (see Am. Compl. at 3-8.) As such, having found no clear error in the R&R, the court accepts and adopts Judge Baxter's R&R in its entirety.
In light of the court's decision to deny Tafari IFP status, his motion for a PI/TRO is denied with leave to renew after the filing fee is paid. (See Dkt. No. 11.)
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IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to withdraw the previous Report-Recommendation and Order (Dkt. No. 6); and it is further
ORDERED that Magistrate Judge Andrew T. Baxter's May 23, 2012 Amended Report-Recommendation and Order (Dkt. No. 8) is ADOPTED in its entirety; and it is further
ORDERED that Tafari's motion to proceed in forma pauperis (Dkt. No. 2) is DENIED pursuant to 28 U.S.C. § 1915(g); and it is further
ORDERED that this case is DISMISSED unless Tafari pays the $350.00 filing fee within thirty (30) days of the date of this Memorandum-Decision Order; and it is further
ORDERED that if Tafari fails to pay the $350.00 filing fee within thirty (30) days of the date of this Memorandum-Decision and Order, the Clerk shall enter judgment for defendants and close this case; and it is further
ORDERED that Tafari's motion for a PI/TRO (Dkt. No. 11) is DENIED with leave to renew pending the payment of the filing fee; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
July 2, 2012
Albany, New York
________________
Gary L. Sharp
Chief Judge
U.S. District Court