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May 18, 2001


The opinion of the court was delivered by: Leisure, District Judge.


Plaintiff Ronald Davidson brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment right to adequate medical care while incarcerated by the New York State Department of Correctional Services ("DOCS"). The named defendants are: Thomas Coughlin, former Commissioner of DOCS; Charles Scully, Superintendent of Green Haven Correctional Facility ("Green Haven"); Dean Riley, Deputy Superintendent of Security at Green Haven; E. Michael Kalonick, Health Services Administrator at Green Haven; Dr. Marc Freedman, Facilities Health Services Director at Green Haven; Wayne Strack, Lieutenant at Green Haven; Dennis Thomson, Sergeant at Green Haven; Angelo Senisi, Senior Counselor at Green Haven; and Gerald Gallagher, Assistant Superintendent of Industries at Green Haven.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants moved for summary judgment, and that motion is pending. Subsequent to defendants' motion for summary judgment being fully submitted, plaintiff moved for leave to submit additional evidence in further opposition to defendants' motion for summary judgment. The Court herein grants plaintiffs motion in part and denies the motion in part.


Plaintiff originally brought these actions pro se, pursuant to 42 U.S.C. § 1983, in the early 1980's, alleging violations of his Eighth Amendment right to adequate medical treatment during his incarceration at Green Haven Correctional Facility. Plaintiff amended his 81 Civ. 0390 complaint in 1990 to add Thomas Coughlin, the DOCS Commissioner at the time, as a defendant. After retaining pro bono counsel in 1996, plaintiff filed a Supplemental Amended Complaint in that action to update his claims to include events that took place after his transfer to Auburn Correctional Facility.

Plaintiffs actions allege a continuous and ongoing failure by defendants to provide him with adequate medical care for four distinct medical conditions. Plaintiff alleges that defendants have: i) failed to treat his foot problems by failing to provide him with access to a podiatrist and orthopedic footwear; ii) refused to treat his allergies by denying him appropriate allergy shots, denying him access to an allergist, ceasing to provide his allergy medication, and denying him housing in a smoke-free environment; iii) failed to treat his tinnitus by denying him ear plugs, specified medication, a masking device, participation in a sleep study, and housing in quieter sections of the correctional facilities; and iv) denied him treatment of his vision problems by denying him, at times, contact lenses, the use of proper eye lubricants, and access to proper monitoring of his contact lens use.


A. Rule 6(b)(2) Considerations

Plaintiff moves the Court for leave to submit additional evidence in opposition to defendants' motion for. summary judgment. Plaintiffs new evidence consists of events that have occurred since his transfer to Elmira Correctional Facility ("Elmira"), where he is currently housed, on June 8, 1999, which took place one month after he submitted his memorandum of law in opposition to defendants' motion for summary judgment. Under Fed.R.Civ.P. 6(b)(2), the Court has discretion to allow plaintiff to submit new evidence if the Court determines that plaintiffs failure to submit such evidence in a timely fashion "was the result of excusable neglect." Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984). "[E]xcusable neglect under Rule 6(b) is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant." Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380, 392 (1993) (internal quotations omitted). The "determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission. Id. at 395. Relevant circumstances include "the danger of prejudice" to the nonmoving party, "the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id.

Tersely stated, these equitable factors militate in favor of the Court accepting plaintiffs relevant new evidence for limited purposes. First, plaintiff could not have submitted the new evidence prior to the close of discovery, because the events the new evidence is being proffered to prove had not yet occurred. Second, it is not plaintiffs fault that he has continued to experience events relevant to the instant litigation while awaiting the Court's decision on the underlying summary judgment motion. The Court assumes for the present purposes that plaintiff is acting in good faith, and the Court appreciates the work of plaintiffs pro bono counsel in bringing all relevant facts to the Court's attention. The Court is mindful that accepting new evidence will cause a brief delay in the proceedings as the defendant's motion for summary judgment cannot be considered until defendants have the opportunity for limited discovery relating to the new evidence. In disposing of the instant motion, the Court does assume that this evidence will be the last new evidence proffered by plaintiff in this case. However, in the interest of justice, the Court will accept plaintiffs relevant new evidence for the limited purposes to which it is relevant. At the same time, it should be abundantly clear that the Court will not accept the new evidence that is not relevant to the instant actions. Below, the Court will identify the new evidence that is relevant to the instant actions and the purposes for which it is accepted.

B. Relevant New Evidence and Purposes for Which it Will be Accepted

Plaintiff seeks to submit new evidence in order to oppose defendants' motion for summary judgment on plaintiffs Eighth Amendment claims. The Eight Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend VII. To "establish an Eight Amendment claim arising out of inadequate medical care, a prisoner must prove `deliberate indifference to his serious medical needs.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This standard includes both an objective and a subjective element. First, plaintiff must prove objectively that his medical condition is "serious." Id. Second, plaintiff must show that defendants acted with the subjective "sufficiently culpable state of mind." Id. The prison official acts with the requisite deliberate indifference when he "knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer v. Brennan, 511 U.S. 825, 838 (1994).

1. Evidence to Show Deliberate Indifference only Admissible on Claim for Injunctive Relief against DOCS Commissioner

Plaintiff seeks to submit new evidence, which purportedly shows that DOCS employees at Elmira have been deliberately indifferent to his medical needs, to "demonstrate[] a continuing conspiracy of deliberate indifference to his medical needs" by defendants. Plaintiffs Memorandum of Law in Support of Plaintiffs Motion for Leave to Submit Additional Evidence (hereinafter, "Pl's Memo") at 1. Although the new evidence is not admissible for the purpose plaintiff asserts, ...

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