Plaintiff claims that he suffers from allergies, tinnitus,
vision problems, and podiatric problems, and that defendants have failed
to provide him with medical treatment for these conditions. Plaintiff
seeks to submit new evidence that is relevant to rebut defendants' claims
that plaintiff does not suffer from podiatric problems and that his
tinnitus is untreatable.
First, defendants contend that plaintiff "has not suffered and does not
suffer from any specific foot problems or extreme foot pain." Defendants'
Memorandum of Law in Support of Their Motion for Summary Judgment ("Defs'
SJ Memo") at 16. Despite defendants' contention that plaintiff does not
suffer from any podiatric problems, plaintiff claims that his new
evidence shows that his foot pain and need for orthopedic footwear has
recently been recognized by Drs. Haftel and Kaempffe, physicians at
Elmira prison. See Plaintiffs Affidavit at ¶ 4.
Second, defendants contend that plaintiffs tinnitus is "chronic and
untreatable." Defs' SJ Memo at 10. Despite defendants' claim that
plaintiffs tinnitus is untreatable, plaintiff claims that his new evidence
shows that Dr. Desai prescribed Xanax for plaintiff to treat the anxiety
caused by his tinnitus, but then cancelled the prescription. See
Plaintiffs Affidavit at ¶ 49-50.
Since filing his memorandum in opposition to defendants' motion for
summary judgment, plaintiff has sought additional medical treatment for
his conditions and two of his medical conditions may have been recognized
by prison doctors. This new evidence will be helpful to the Court in
deciding whether a genuine issue of fact exists as to whether plaintiff
has one or more sufficiently serious medical conditions. Therefore, in
the interest of justice, the Court will allow plaintiff to use the
relevant portions of the new evidence accepted in section one above to
rebut defendants' claims that his tinnitus is untreatable and that he has
no foot problems.
3. Evidence Not Relevant and Not Accepted
Plaintiff attempted to include evidence that is not related to any of
his four medical conditions complained of in the current actions. First,
plaintiff complained that he has been denied the use of Theraband in
conjunction with exercise. These allegations, contained in paragraphs
30-32 of plaintiffs affidavit, and accompanying exhibits 10-11 are not
accepted by the Court. Second, plaintiff complained in his affidavit and
submitted supporting exhibits of deliberate indifference to his shoulder
problems. These allegations, contained in paragraphs 58-61 of plaintiffs
affidavit, and accompanying exhibits 23-27 are likewise not accepted by
C. Defendants' Request for Oral Argument Denied
Although the Southern District of New York Judges' Part Rules require
that defendants request oral argument upon filing the opposing papers,
defendants made a belated request for oral argument on plaintiffs motion
to submit additional evidence. Satisfied that oral argument would not be
helpful to the Court, the Court exercised its discretion to decide the
motion on the papers submitted by the parties and herein denies
defendants' request for oral argument. See Doctor's Assoc. Inc. v.
Distajo, 66 F.3d 438, 448 (2d Cir. 1995) ("Courts have broad discretion
to determine how much, if any, oral argument is appropriate in a given
case."); see also Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d
Cir. 1998) ("the `hearing' requirements of Rule 12 and Rule 56 do not
mean that an oral hearing is necessary").
D. Additional Discovery
Plaintiff argued the merits of the new evidence to the extent he found
necessary in his memorandum in support of his motion to submit the new
evidence, and pointed out that the new evidence is "wholly reflected in
the administrative records of DOCS itself." Plaintiffs Reply Memorandum
in Further Support of Plaintiffs Motion for Leave to Submit Additional
Evidence at 4. Defendants may conduct additional discovery and may
respond to plaintiffs evidence by filing a memorandum on the merits by
June 18, 2001. Plaintiff may file a reply memorandum by July 2, 2001.
For the foregoing reasons, plaintiffs motion for leave to submit
additional evidence in opposition to defendants' motion for summary
judgment is GRANTED in part and DENIED in part.