DECISION and ORDER In this §1983 action, Plaintiff alleges violations of Plaintiff’s decedent, Thomas Blancke, Sr.’s (“Blancke”), Eight Amendment rights while Blancke was incarcerated at the Five Points Correctional Facility (“Five Points”) operated by the New York State Department of Corrections and Community Supervision (“DOCCS”) at which Defendants were employed as corrections officers. Specifically, Plaintiff asserts Blancke’s death as a result of a severe beating during the early morning hours of December 14, 2013, by Blancke’s cell-mate, one Brian Karris (“Karris”), was caused by Defendants’ wrongful placing Karris, an inmate with violent propensities known to Defendants, in Blancke’s cell in retaliation for Blancke’s misconduct. Plaintiff also alleges Defendants Brown and Baugh’s failure to intervene promptly after hearing sounds of fighting in the cell further contributed to Blancke’s death in violation of Blanche’s Eighth Amendment right to receive reasonable protection while a prisoner at Five Points. Finally, Plaintiff alleges Defendants failed to provide Blancke with more timely medical assistance, unreasonably delayed by Defendants, which if administered promptly could have avoided Blancke’s death as a result of Karris’s beating. The record indicates Karris was subsequently convicted in state court of murder in causing Blancke’s death. Plaintiff’s claim for loss of consortium has been withdrawn. Dkt. 31 at 13. By papers filed September 7, 2018 (Dkt. 27), Defendants moved for summary judgment (“Defendants’ motion”). Plaintiff’s Opposition was filed October 15, 2018 (Dkt. 31) (“Plaintiff’s Opposition”). Defendants’ Reply was filed October 26, 2018 (Dkt. 32) (“Defendants’ Reply”). In Plaintiff’s Opposition, Plaintiff contends Defendants’ motion should be denied as Plaintiff has not completed discovery, specifically, depositions in the matter, and requests pursuant to Fed.R.Civ.P. 56(d) (“Rule 56(d)”) the court permit Plaintiff to conduct depositions and obtain records pertaining to Defendants’ failure to provide Blancke with medications needed to control his behavioral problems, to enable Plaintiff to fully oppose Defendants’ motion. Dkt. 31-1 at
3-5 (noting Plaintiff has not received discovery relating to the appropriateness of assigning Blancke and Karris to the same cell based on their psychological conditions and Plaintiff’s lack of opportunity to examine relevant witnesses including Defendants). In Defendants’ Reply, Defendants argued that although Plaintiff served document requests to which Defendants responded on November 27, 2017, Plaintiff failed to notice and conduct any depositions prior to the cut-off date for discovery of August 9, 2018, established by the Scheduling Order of August 9, 2017 (Dkt. 16), and that Plaintiff never requested an extension of the discovery cut-off date to do so. Dkt. 32 at 2. Defendants’ motion was thereafter filed one month after the scheduled close of discovery. Subsequent to Defendants’ motion filing, in letters to the court dated December 13, 2019 and December 17, 2019, (“the December 2017 letters”) Plaintiff requested leave to include in Plaintiff’s Opposition a copy of a report concerning Blancke’s death at Five Points issued by the New York State Commission of Correction1 (“the Commission”) dated June 27, 2017 (“the Report”) which had been included in Defendants’ document production but as a result of “law office error” was overlooked by Plaintiff’s counsel and thus not included in Plaintiff’s Opposition. Dkt. 35 at 1.2 According to Plaintiff, based on the Commission’s review of surveillance videos, the Report bolsters Plaintiff’s contentions that Defendants failed to properly patrol the Special Housing Unit (“SHU”) gallery where Blancke’s cell was located during the 5-6 a.m. time frame, as required by DOCCS directive, on December 14, 2013, during which the altercation allegedly occurred and failed to respond promptly to sounds from the cell indicating a fight was taking place which failure allowed Karris to assault Blancke for approximately 40 minutes without any intervention by Defendants, constituting an Eighth Amendment violation based on Defendants’ failure to protect Blancke. Dkt. 35 at 2. Plaintiff further contends the Report provides evidence supporting Plaintiff’s allegations that the sounds emanating from the cell should have alerted Defendants Baugh and Brown to Blancke’s need for assistance supporting Plaintiff’s Opposition of Defendants’ motion. See Dkt. 35 at 2. Plaintiff further argues that the Report findings that Defendants’ delay in responding to Blancke’s, who was still alive when Defendants responded, severe and palpable injuries by administering immediate first aid significantly contributed to Blancke’s death. Additionally, according to Plaintiff, the Report creates material issues of fact as to whether Karris and Blancke were properly approved and designated for double-celling, i.e., housing, in the same call based on their respective psychological profiles and Defendants’ failure to provide for Blancke’s medical needs prior to the assignment leading to the wrongful double-celling with Karris. Id. Based on the Report’s finding of impropriety by Defendants Baugh and Brown in providing the required degree of protection to inmates against reasonably foreseeable threats and intervention in the case of assaults by another inmate, which Plaintiff contends provides evidence supportive of Plaintiff’s allegations, Plaintiff requests that the Report be included in Plaintiff’s Opposition despite counsel’s failure to include it in Plaintiff’s Opposition by October 15, 2018 as required by the court’s briefing schedule for filing of opposition to Defendants’ motion. See Dkt. 29. By papers filed December 19, 2019, Defendants moved to strike Plaintiff’s December 2019 letters to the court, Dkt. 36, contending the Report was included in Defendants’ document productions, a fact readily discernible by examination of Defendants’ production in digital form on a USB drive according to Defendants. Dkt. 361
