21-2554 Brandon v. Royce IN THE
United States Court of Appeals For the Second Circuit ________
AUGUST TERM, 2023
ARGUED: JANUARY 10, 2024 DECIDED: MAY 15, 2024
No. 21-2554
CHAMMA K. BRANDON, Plaintiff-Appellant,
v.
MARK ROYCE, DEPUTY SUPERINTENDENT OF SECURITY, LESLIE MALIN, DEPUTY SUPERINTENDENT OF PROGRAMS, JOHN V. WERLAU, SAFETY AND SECURITY LIEUTENANT, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, Defendants-Appellees. ∗
________
Appeal from the United States District Court for the Southern District of New York. 16-cv-5552 – Briccetti, District Judge. ________
∗ The Clerk of Court is respectfully directed to amend the caption accordingly. 21-2554 Brandon v. Royce
Before: CALABRESI AND NATHAN, Circuit Judges; NAGALA, District Judge. ∗ ∗
Plaintiff-Appellant Chamma K. Brandon appeals from the United States District Court for the Southern District of New York’s (Briccetti, J.): (1) grant of summary judgment to the Defendants-Appellees on his claim that they violated his right to the free exercise of religion under the First Amendment of the United States Constitution; and (2) the district court’s denial of his request to reopen discovery for a second time to permit expert testimony on his claim that one defendant, Mark Royce, subjected him to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. We agree with Plaintiff-Appellant that the district court erred in granting summary judgment to the Defendants-Appellees on his First Amendment claim, but we find no error in the district court’s denial of his motion to reopen discovery. We therefore VACATE IN PART and AFFIRM IN PART.
ALESSANDRA DEBLASIO, Pro Bono Counsel, New York, N.Y., for
Plaintiff-Appellant.
DENNIS FAN, Senior Assistant Solicitor General, State of New York
(Barbara D. Underwood, Solicitor General, State of New York, Ester
Murdukhayeva, Deputy Solicitor General, State of New York, on the
∗∗ Judge Sarala V. Nagala, of the United States District Court for the District of Connecticut, sitting by designation.
2 21-2554 Brandon v. Royce
brief), for Letitia James, Attorney General, State of New York, New
York, N.Y.
CALABRESI, Circuit Judge:
Chamma K. Brandon (“Brandon”), then proceeding pro se as an inmate in
the custody of the New York State Department of Corrections and Community
Supervision (“DOCCS”) and incarcerated at Sing Sing Correctional Facility (“Sing
Sing”), brought suit under 42 U.S.C. § 1983 in the United States District Court for
the Southern District of New York (Briccetti, J.) against three prison officials in
their individual and official capacities. As relevant here, Brandon alleged that: (1)
all three defendants — Mark Royce (“Royce”), then Deputy Superintendent of
Security at Sing Sing, Leslie Malin (“Malin”), then Deputy Superintendent of
Program Services at Sing Sing, and John V. Werlau (“Werlau”), then Safety and
Security Lieutenant at Sing Sing — violated his right to the free exercise of religion
under the First Amendment of the United States Constitution by denying him a
special meal in celebration of Eid al-Adha; and (2) Royce violated his right to be
free from cruel and unusual punishment under the Eighth Amendment of the
United States Constitution by ordering that his housing block be constantly
illuminated.
The district court granted the defendants’ motion for summary judgment
on Brandon’s First Amendment claim and denied Brandon’s request to reopen
discovery for a second time to permit expert testimony at trial on his Eighth
3 21-2554 Brandon v. Royce
Amendment claim. Following a five-day trial in September 2021, a jury found that
Royce had not violated Brandon’s Eighth Amendment right to be free from cruel
and unusual punishment.
On appeal, Brandon argues that the district court erred by granting
summary judgment to the defendants on his First Amendment claim and by
denying his request to reopen discovery to permit expert testimony on his Eighth
Amendment claim. We hold that the district court erred in granting the
defendants’ motion for summary judgment but that the district court did not abuse
its discretion in denying Brandon’s request to reopen discovery for a second time.
Accordingly, we VACATE IN PART and AFFIRM IN PART.
BACKGROUND
I. First Amendment Claim
Eid al-Adha, or the feast of sacrifice, is a major annual Islamic holiday
observed worldwide through special prayer service, shared meals, and other
religious activities. See Brandon v. Royce, No. 16–cv–5552, 2019 WL 1227804, at *1
(S.D.N.Y. Mar. 15, 2019). Brandon alleged that Eid al-Adha is a four-day religious
celebration whose first day in 2015 fell on Thursday, September 24. Id.
According to a memorandum from Imam Jon Young, Sing Sing’s
“Coordinating Chaplain,” to Defendant Malin, Sing Sing organized a full-day
event on September 24, 2015 to celebrate Eid al-Adha. Supp. App’x 95. That event
included a religiously mandated morning shower, a prayer service, fellowship
activities, and a shared religious meal “prepared by Muslim cooks” and served to
Muslim inmates in the mess hall after “the population feed-up.” Id. Importantly,
4 21-2554 Brandon v. Royce
Imam Young’s memorandum further specified that meal trays “shall be provided”
for Muslim inmates in “Keep-lock, [the housing units], or the Hospital” who were
unable to join their fellow observers in the mess hall. Id. “A list of [those] confined
Muslim inmates [was] attached.” Id. The parties agreed that Brandon was able to
attend the September 24 event in person and that he received the Eid al-Adha
meals that day. Brandon, 2019 WL 1227804, at *2.
Sing Sing also scheduled a separate event for September 26, 2015 at which a
special meal like that offered on September 24 would be served in the mess hall to
Muslim inmates and their guests. Brandon’s First Amendment claim arises from
a single incident related to that second event. The parties dispute many of the
material facts. Therefore, we briefly recount the material facts from each party’s
perspective.
A. Brandon’s Version of Events
According to Brandon, and as corroborated by the sworn declaration of
Jerry Johnson (“Johnson”), an inmate then serving as the Administrative Chaplain
Clerk, the September 26 event was organized to commemorate Eid al-Adha
through a shared religious meal with inmates and their invited guests. App’x 113
¶¶ 11–14 (Brandon Declaration), 133 ¶¶ 11–14 (Johnson Declaration). The day
before the event, Imam Young informed the Muslim inmates that the defendants
had realized the September 26 event was overbooked. App’x 112 ¶ 4, 132 ¶ 4. 136
inmates had signed up to attend, approximately eleven more than the maximum
number of inmates who could participate. See Supp. App’x 71; Compl. Ex. A, ECF
No. 3. Imam Young “relayed” that, “after reasoning with [the defendants in the
instant case], it was decided that if some of the inmates were willing to voluntarily
5 21-2554 Brandon v. Royce
withdraw from attending [the September 26 event], all of the invited guest[s]
would be able to attend.” App’x 112 ¶ 5, 132 ¶ 5.
Imam Young further “assured” that, as part of the arrangement approved
by the defendants, Muslim inmates who voluntarily withdrew from the September
26 event would receive, “in commemoration of the Eid Celebration,” the special
meal in their cells on meal trays. App’x 112 ¶ 6, 132 ¶ 6. Brandon withdrew from
attending the September 26 event on the condition that he receive the special meal
through a meal tray sent to his cell. App’x 112–13 ¶¶ 8, 13.
As with the September 24 event, a list of inmates entitled to the meal trays
was generated. A chart labeled “Prayer Service Religious [Meal] Trays” listed
twenty-four inmates who were to receive the special meal in their cells. App’x 121.
The list purported to be from “IMAAM J. YOUNG [sic],” was addressed to the
mess hall supervisor, and was dated September 25, 2015. Id. Brandon was
included on the list. Id. But the provenance of that list is unknown. Brandon, 2019
WL 1227804, at *3.
Pursuant to the agreement reportedly approved by the defendants, Brandon
did not attend the September 26 event. But he did not receive a meal tray in his
cell. Another inmate, John McClellan (“McClellan”) declared that, around noon,
Imam Young directed him and other inmate helpers to prepare the meal trays for
delivery to the inmates on the list described above. App’x 143 ¶ 1. Imam Young
departed after giving that instruction. Id. ¶ 2. Shortly thereafter, Defendant
Werlau arrived. See id.; id. at 113–14 ¶¶ 13–14, 133–34 ¶ 15. After he inquired
about the purpose of the trays, McClellan and “several other inmates” explained
6 21-2554 Brandon v. Royce
why they were being prepared and their significance. Id. at 143 ¶ 2. But Werlau
ordered that the trays be discarded. See id.; id. at 113–14 ¶¶ 13–14, 134 ¶ 15.
B. The Defendants’ Version of Events
According to the defendants, the September 26 event — unlike the
September 24 event — was “not a religious event” and was “not necessarily related
to [Eid al-Adha].” Brandon, 2019 WL 1227804, at *2. Rather, it was a “family event”
open to Muslim inmates and their guests. Id.
A “Special Events Package” was prepared by John Mahoney, DOCCS’s
Recreation Program Leader II, for the September 26 event. Compl. Ex. B, at 23.
One page of the package dated “9/23/2015” lists the “CATEGORY OF PROGRAM”
as “RELIGIOUS,” “IMAM YOUNG” as the member of the “SPECIAL EVENT
PLANNING COMMITTEE” responsible for the “PROGRAM,” and “A.
BULLOCK” as the individual responsible for the food service. Id. A different page
of the package dated “September 04, 2015” provides the menu for the September
26 event and lists the names and housing locations of the inmates who were
“assigned cooks.” Id. at 24. That menu page also contains a handwritten notation
signed by Defendant Royce, stating: “No Facility Prepared food will leave the
Event Area. Any Extra food will be Disposed of at the end of the Event [sic].” Id.
In a declaration, Royce averred that he “instructed someone to write the
7 21-2554 Brandon v. Royce
statement . . . for safety and security reasons” and signed it on September 8, 2015. 1
Supp. App’x 121–22 ¶¶ 3, 5.
The defendants deny approving or instructing Imam Young to offer to have
meal trays sent to the inmates’ cells in exchange for those inmates withdrawing
from the September 26 event. Supp. App’x 122 ¶ 6 (Royce Declaration), 127 ¶ 18
(Malin Declaration); see id. at 131–33 ¶¶ 6–17 (Werlau Declaration). They further
aver that they were not aware of any list providing for Muslim inmates to receive
the special meal in their cells or of any member of the executive team who
approved such a list. Supp App’x 123 ¶¶ 7–8, 127 ¶¶ 15–17, 131 ¶¶ 7–11.
As support for their position, the defendants submitted a sworn declaration
from Imam Young, who is not a party to this lawsuit. In his declaration, Imam
Young denied asking any Muslim inmates to withdraw voluntarily from the
September 26 event in exchange for receiving the special meal in their cells. Supp.
App’x 137 ¶ 22. He also averred that he informed Muslim inmates “after Friday
prayers for at least eight weeks prior to the event and during Ramadan that there
would be no [meal trays]” on September 26 and that he “informed [Brandon] on
at least one occasion that he was not entitled to a [meal] tray on September 26,
2015.” Supp. App’x 136–37 ¶¶ 17, 28. Imam Young also denied generating a list
1 The version of the special events package appended to Brandon’s complaint is labeled “UPDATED 9/24/15.” Compl. Ex. B, at 21. Brandon argues that Royce “updated” the menu page with the handwritten notation on or around September 24, 2015, “seemingly contradict[ing] the initial order that would have given [Brandon] the [meal] tray.” Brandon v. Royce, No. 16–cv–5552, 2017 WL 2656452, at *5 (S.D.N.Y. June 20, 2017); see Oral Arg. at 24:22–25:12; Pl.’s Mem. of Law in Resp. to Defs.’ Mot. for Summ. J. 23, ECF No. 71.
8 21-2554 Brandon v. Royce
of inmates who were to receive the special meal in their cells on September 26 and
instructing any inmate to prepare such meal trays. Supp. App’x 137 ¶¶ 25–27.
On September 26, 2015, Werlau ordered the inmates who were preparing
the meal trays to discard them. Werlau averred in his sworn declaration that he
had reviewed the special events package for the event and that it “did not contain
any provision for any food to be taken out of the [mess hall] and transported to
the housing blocks.” Supp. App’x 131 ¶¶ 5–6. Rather, the special events package
“specifically provided” that “[n]o facility prepared food will leave the event area”
and that “[a]ny extra food will be disposed of at the end of the event.” Supp. App’x
131 ¶ 8 (first alteration in original). Werlau further declared that he “spoke
to . . . Mark Royce by telephone and he verified that no food should be allowed to
leave the [mess hall].” Supp. App’x 131 ¶ 9. Werlau then “ordered that th[e] extra
food be disposed of in accordance with the written documentation and . . . Royce’s
verbal confirmation.” Supp. App’x 132 ¶ 12.
As a result, Brandon did not receive the special meal on September 26, 2015.
II. Eighth Amendment Claim
Approximately two months after Eid al-Adha, on or about November 23,
2015, new light bulbs were installed in housing block B, where Brandon was then
housed. Brandon, 2019 WL 1227804, at *4. But according to Brandon, maintenance
workers mistakenly installed 1000-watt, wide-range, high-intensity, “stadium-
styled light bulbs.” Id.
On November 28, 2015, Brandon filed a grievance about the newly installed
light bulbs, which he claims Royce ordered to be left on for twenty-four hours per
day, seven days per week. Brandon explained that, because of the constant
9 21-2554 Brandon v. Royce
illumination, he was “beginning to develop migraine headaches, dizziness, and
excessive fatigue,” among other symptoms. Supp. App’x 109. He requested that
the lights “be either turned off or dimmed” so he could sleep. Id. Royce responded
in a memorandum dated December 11, 2015 that Brandon’s complaint was “being
investigated and followed up by the facility Maintenance Department.” Id. at 108.
The parties agree that on or about December 21, 2015 the 1000-watt light
bulbs were replaced, but Brandon alleged that the replacement bulbs were
“similar in intensity.” Brandon, 2019 WL 1227804, at *4. Brandon alleged that he
was unable to shield himself from the constant illumination, resulting in “a host
of medical ailments, namely: sleep deprivation; insomnia; severe migraines;
reoccurring episodes of dizziness; hallucinations, and severe psychological
trauma.” Id. Brandon filed further appeals with DOCCS’s central office
challenging the continuous lighting, but his complaints were rejected. DOCCS
explained that “the upper tier lights are kept on 24 hours a day 7 days a week for
security reasons,” that “the wrong bulbs were used[,] and that they have since
been replaced.” Id. at *5.
III. Proceedings Below
Proceeding pro se and under 42 U.S.C. § 1983, Brandon filed a complaint
against the defendants on July 12, 2016 in the Southern District of New York. As
relevant here, Brandon alleged that the defendants, by denying him a meal tray on
September 26, deprived him of his right to the free exercise of religion under the
First Amendment of the United States Constitution as incorporated against the
States by the Fourteenth Amendment of the United States Constitution, see
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). He further alleged that Royce
10 21-2554 Brandon v. Royce
violated his right to be free from cruel and unusual punishment pursuant to the
Eighth Amendment of the United States Constitution as incorporated against the
States by the Fourteenth Amendment, see Robinson v. California, 370 U.S. 660, 666
(1962), by ordering the constant illumination of his housing block. 2
The defendants moved for summary judgment, arguing that Brandon had
failed to state a valid claim under either the First Amendment or the Eighth
Amendment. With respect to Brandon’s free exercise claim, the defendants further
argued that they had legitimate penological interests that, as a matter of law,
justified the denial of the meal tray on September 26. Defs.’ Mem. of Law in Supp.
of Defs.’ Mot. for Summ. J. 6, 14, 21, ECF No. 65; see Defs.’ Reply Mem. of Law in
Further Supp. of Defs.’ Mot. for Summ. J. 1, ECF No. 77.
1.
The district court agreed with this latter argument and held that the
defendants were “entitled to summary judgment on [Brandon’s] free exercise
claim” because they had “a legitimate penological interest in preventing food from
being transported to the housing blocks,” namely:
(i) the concern that inmates could secret[e] contraband in
the food, which cannot be searched before it leaves the
2 Brandon also alleged that all three defendants deprived him of his “statutory right to religious exercise” under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq. App’x 30. The district court dismissed that claim. Brandon, 2017 WL 2656452, at *5. Brandon separately alleged that Royce violated his Eighth Amendment right to be free from cruel and unusual punishment by acting with “deliberate[] indifferen[ce] to his health and safety” by ordering the installation of the light bulbs in November 2015. Brandon, 2019 WL 1227804, at *7. The district court held that claim failed as a matter of law. Id. Brandon does not challenge either holding on appeal.
11 21-2554 Brandon v. Royce
mess hall; (ii) the ability to use [meal] trays to influence
other inmates through bartering, selling, extortion, and
bribery; (iii) the risk of theft; (iv) the health risks involved
if inmates choose to eat the food after holding it in their
cells for days; and (v) hygienic reasons, including
maintaining cleanliness and preventing rodents.
Brandon, 2019 WL 1227804, at *6–*7.
The district court additionally ruled that the defendants were entitled to
summary judgment as a matter of law because Brandon “had an alternative means
of exercising his right—by attending the September 26 event and receiving the
very meal of which he was deprived.” Id. at *7.
2.
The district court, however, denied the government’s motion for summary
judgment on Brandon’s Eighth Amendment claim. Id. at *9. Brandon then
successfully moved for the appointment of pro bono trial counsel to represent him.
Brandon’s trial counsel entered a notice of appearance in September 2019 and
sought to reopen discovery to depose Defendant Royce. The district court granted
that motion and subsequently scheduled trial on Brandon’s Eighth Amendment
claim for June 15, 2020. The trial was delayed, however, due to the onset of the
COVID-19 pandemic.
In August 2020, six months after taking Royce’s deposition, trial counsel
disclosed for the first time his intention to call an expert witness, Dr. Steven
Lockley, to testify on “the effects of constant illumination on health.” App’x 171,
184–86. Trial counsel moved to reopen discovery again to facilitate the expert
12 21-2554 Brandon v. Royce
testimony. Id. at 198. Royce objected both to the expert testimony and to the
motion to reopen discovery. Id. at 171, 187–89. At a pretrial conference, the district
court tentatively scheduled trial for February 1, 2021 and precluded the proposed
expert witness.
The trial ultimately took place over a five-day period in September 2021.
The jury found that Brandon did not establish that Royce violated his right to be
free from cruel and unusual punishment under the Eighth Amendment. This
appeal followed.
DISCUSSION
I. First Amendment
We review a district court’s grant of summary judgment de novo. Borley v.
United States, 22 F.4th 75, 78 (2d Cir. 2021). “Summary judgment is appropriate
only where ‘there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Union Mut. Fire Ins. Co. v. Ace Caribbean
Mkt., 64 F.4th 441, 445 (2d Cir. 2023) (citation omitted). “We may consider only
the evidence before the district court.” Salahuddin v. Goord, 467 F.3d 263, 272 (2d
Cir. 2006). “In determining whether there are genuine disputes of material fact,
we are ‘required to resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary judgment is sought.’”
Union Mut. Fire Ins. Co., 64 F.4th at 445 (citation omitted).
We will affirm summary judgment where the record, taken as a whole,
could not lead a rational factfinder to enter judgment for the non-moving party.
Id. “The moving party bears the initial burden of showing why it is entitled to
13 21-2554 Brandon v. Royce
summary judgment.” Salahuddin, 467 F.3d at 272. “If the movant makes this
showing . . . , the burden shifts to the nonmovant to point to record evidence
creating a genuine issue of material fact.” Id. at 273. On appeal, Brandon contends
that the grounds articulated by the district court were insufficient to support
summary judgment in favor of the defendants on his First Amendment claim. We
agree.
Inmates do not abandon their constitutional rights at the prison gate. Id. at
274. “Inmates clearly retain protections afforded by the First Amendment,
including its directive that no law shall prohibit the free exercise of religion.”
O’Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987) (internal citation omitted). To
show a violation of his First Amendment right to free exercise “[i]n the context of
a [Section] 1983 claim . . . , there is no requirement to show that the governmental
burden on religious beliefs was ‘substantial.’” Kravitz v. Purcell, 87 F.4th 111, 127
(2d Cir. 2023). “Rather, ‘a plaintiff may carry the burden of proving a free exercise
violation . . . by showing that a government entity has burdened his sincere
religious practice pursuant to a policy that is not ‘neutral’ or ‘generally
applicable.’” Id. (alteration in original) (citation omitted).
“Balanced against the constitutional protections afforded prison inmates,
including the right to free exercise of religion, [however,] are the interests of prison
officials charged with complex duties arising from administration of the penal
system.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (alteration in original)
(quoting Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)). Accordingly,
“prison regulations alleged to infringe constitutional rights are judged under a
‘reasonableness’ test less restrictive than that ordinarily applied to alleged
14 21-2554 Brandon v. Royce
infringements of fundamental constitutional rights.” O’Lone, 482 U.S. at 349. The
same analysis applies to an individual decision to deny a prisoner the ability to
engage in some requested religious practice. Ford, 352 F.3d at 595 n.15.
“Courts must evaluate four factors in making the reasonableness
determination: whether the challenged . . . official action has a valid, rational
connection to a legitimate governmental objective; whether prisoners have
alternative means of exercising the burdened right; the impact on guards, inmates,
and prison resources of accommodating the right; and the existence of alternative
means of facilitating exercise of the right that have only a de minimis adverse effect
on valid penological interests.” Salahuddin, 467 F.3d at 274 (footnote omitted).
In granting summary judgment to the defendants, the district court did not
resolve the parties’ dispute as to whether the September 26 event was a religious
event related to Eid al-Adha or an unrelated “family event.” Rather, the district
court relied on the defendants’ asserted penological interests and their view that
there was an alternative means of Brandon exercising his First Amendment right:
by attending the September 26 event and receiving the special meal there. Neither
ground supports granting judgment as a matter of law to the defendants at the
summary judgment stage.
Whether Brandon had an alternative means of receiving the September 26
meal is a disputed material fact. According to Brandon — and as corroborated by
Johnson, see Fed. R. Civ. P. 56.1(c), the deal purportedly approved by the
defendants was that inmates who volunteered to withdraw from attending the
September 26 event would receive, in exchange, the special meal in their cells
through meal trays. App’x 112 ¶¶ 4–6 (Brandon Declaration); App’x 132 ¶¶ 4–6
15 21-2554 Brandon v. Royce
(Johnson Declaration). The defendants respond that they never authorized the
purported meal-tray arrangement and that Brandon could have received the meal
by attending the September 26 event. In support of that view, they point to a
declaration from Imam Young denying Brandon’s version of events.
But, as the party against whom summary judgment was sought, Brandon is
entitled to the resolution of this ambiguity in his favor. See Union Mut. Fire Ins.
Co., 64 F.4th at 445. Under Brandon’s version of events, he voluntarily withdrew
from the September 26 event under the belief (misguided, as it turned out) that he
would receive a meal tray. Resolving the factual ambiguities in Brandon’s favor,
we cannot say that Brandon had genuine alternative means of receiving his
religious meal, given his voluntary withdrawal from the event. And no one
disputes that, after withdrawing from the event, Brandon had no other way of
receiving the meal. The district court thus erred by crediting the defendants’ view
that Brandon had an alternative means of exercising his right to the free exercise
of religion.
The defendants argue that they are nonetheless entitled to summary
judgment because the record, “at most,” suggests that Imam Young acted without
express or implied authority in proposing the meal-tray arrangement for
September 26, resulting in “an unfortunate misunderstanding” between Imam
Young and Brandon that “is not of constitutional dimensions.” Appellees’ Br. 30.
But, as explained, Brandon’s and Johnson’s declarations aver that the meal-tray
arrangement was expressly approved by the named defendants. Reading the
record in the light most favorable to Brandon, those declarations are entitled to the
benefit of the doubt.
16 21-2554 Brandon v. Royce
The district court also erred in holding that the defendants were entitled to
summary judgment based on penological concerns. As counsel for defendants
acknowledged at Oral Argument, those concerns — that inmates could secrete
contraband in the food, which could not be searched prior to leaving the mess hall,
or use food to extort, bribe, or otherwise influence other inmates, the risk of theft,
and the health and hygienic risks — arise whenever meal trays are delivered to
inmates’ cells. Oral Arg. at 09:45–09:52. Nevertheless, the defendants authorized
the use of meal trays for the September 24 Eid al-Adha event held two days before
Brandon was denied his meal tray. In district court, the defendants made no
attempt to explain why they overlooked those concerns on September 24 but could
not overlook them on September 26.
On appeal, the defendants attempt for the first time to distinguish the two
events by arguing that their decision to deny Brandon a meal tray on September
26 was “based on security concerns attendant to events open to the public.”
Appellees’ Br. 28 (emphasis added). That is, for the September 26 event, they had
a legitimate penological concern that “a visitor would introduce contraband into
the prison.” Id. at 28–29 (citation omitted). Given that the September 24 Eid al-
Adha event was open only to inmates, they add, they lacked any similar concerns
when authorizing the use of meal trays for that event. See id. The defendants argue
that the evidence reviewed by the district court supports this argument, pointing
to a declaration from Defendant Royce identifying “a security concern that
someone (civilian or inmate cooks) might place contraband in the food and
transport it to the housing unit . . . .” Supp. App’x 122–23 ¶ 6.
17 21-2554 Brandon v. Royce
Royce’s declaration most plausibly states a concern that cooks might place
contraband in the meal trays. Although Royce first refers generally to a “serious
concern about the security risk[] . . . that contraband could be secreted in the food,”
Royce specifies in the next paragraph that the particular security concern relates
to “civilian or inmate cooks.” Id. at 122–23 ¶¶ 5–6.
And there is nothing in the record to suggest that “civilian cooks” were
involved with the September 26 event. The special events package prepared and
used by the defendants lists the names and housing locations of the inmates who
were “assigned cooks” for the September 26 event. Supp. App’x 72. That is
consistent with the procedure defendants say was used for the September 24 Eid
al-Adha meal, which was “prepared by Muslim [inmate] cooks” and sent to other
inmates who could not join their fellow observers in the mess hall. Supp. App’x
95; see Appellees’ Br. 28–29. If inmates — and only inmates — prepared both
meals, Royce’s declaration is not enough to explain why the defendants
authorized meal trays on September 24 but not September 26.
The defendants urge a broader reading of Royce’s declaration, asserting in
conclusory fashion that it expresses a general “‘security concern’ that a
‘civilian . . . might place contraband in the food.’” Appellees’ Br. 29 (quoting Supp.
App’x 122–23 ¶ 6). But defendants’ quotation elides Royce’s express reference to
“civilian or inmate cooks.” Supp. App’x 122–23 ¶ 6 (emphasis added). And the
defendants do not point to — nor have we found — anything else in the record to
support that reading. There is nothing in the record to suggest, for example, that
civilian visitors would have had access to the meal trays. The defendants’ papers
in support of their motion for summary judgment do not mention any risks that
18 21-2554 Brandon v. Royce
“civilian” visitors might have posed. Indeed, the district court understood the
defendants’ concern to be “that inmates could secret[e] contraband in the food.”
Brandon, 2019 WL 1227804, at *7 (emphasis added).
To be sure, we do not dispute that an increased possibility that a visitor
would introduce contraband into a prison is a legitimate penological concern, see
Smith v. Coughlin, 748 F.2d 783, 788 (2d Cir. 1984), or that prison officials may have
legitimate reasons to permit meal trays on some occasions and prohibit them on
others. We simply conclude that there is no unambiguous record support for the
defendants’ claim that they denied Brandon a meal tray on September 26 because
“the presence of outside guests increased the risk that contraband could be hidden
in the food.” See Salahuddin, 467 F.3d at 276–77 (“Post hoc justifications with no
record support will not suffice” to show that “the disputed official conduct was
motivated by a legitimate penological interest.”). And we further conclude, based
on the evidence before the district court, that the penological concerns relied on by
the district court and raised on appeal cannot at this juncture support summary
judgment in favor of the defendants. See also id. at 277 (“We would not be
surprised if such evidence were forthcoming at trial . . . , but it is absent from the
record as presently developed.”).
The defendants argue, in the alternative, that they are entitled to qualified
immunity on Brandon’s First Amendment challenge because this court has held
that “the denial of a religious meal violates a clearly established right . . . [only]
absent a legitimate penological justification.” Appellees’ Br. 32 (quotation marks
and citation omitted). But since — at this stage — we have concluded that the only
penological justifications asserted lack unambiguous support in the present
19 21-2554 Brandon v. Royce
record, we cannot grant qualified immunity on that ground. See, e.g., Ford, 352
F.3d at 597 (finding that “prior cases make it sufficiently clear that absent a
legitimate penological justification, . . . prison officials’ conduct in denying [a
plaintiff] a feast imbued with religious import was unlawful”). And the
defendants do not offer any other basis on which we might grant them qualified
immunity on this claim.
II. Preclusion of Brandon’s Expert Witness
We turn now to Brandon’s challenge to the preclusion of Dr. Steven Lockley,
his expert witness. At the pretrial conference, trial counsel for Brandon explained
that he sought to reopen discovery to offer testimony about the “effects of lighting
on health” and to “object[]” to the defense witnesses’ expected testimony about
the positioning of the lights. App’x 201. Trial counsel further explained that he
had not made that request sooner because, when he first joined the case in
September 2019, he “understood” that the parties were “pushing to get a trial as
soon as possible, and [he] wanted to make as narrow as possible the remaining
issues to resolve before trial.” App’x 200.
In denying the request to reopen discovery, the district court ruled that
Brandon’s trial counsel had not established that Brandon was entitled to the relief
requested, as the “need for this discovery was certainly foreseeable” when counsel
joined the case in September 2019 as “[t]he case has always been about the lighting
and the intensity of lighting and how close it was and everything else.” App’x
205. The district court further ruled that Royce “would suffer prejudice by having
to incur additional time and expense to deal with this issue.” App’x 204.
20 21-2554 Brandon v. Royce
The district court assigned little to no weight to: (1) the fact that trial was not
imminent, App’x 199, 204; and (2) whether the expert testimony was “important
enough to allow [Brandon] to reopen discovery,” App’x 206. As to the latter, the
district court suggested that “most regular people, i.e. jurors, can understand
intuitively that if you have a bright light illuminating your cell 24 hours a day,
that’s a bad thing and it’s going to result in sleeping difficulties and associated
problems arising from that.” App’x 205. Finding nonetheless that the importance
of the proposed testimony was “a closer call,” the district court precluded it
because the prejudice to Royce, the foreseeability of the need for the proposed
testimony, and trial counsel’s lack of diligence in seeking to reopen discovery
sooner all weighed against Brandon. App’x 206.
“The district court has wide discretion in punishing failure to conform to
the rules of discovery.” Outley v. City of New York, 837 F.2d 587, 590 (2d Cir. 1988).
Accordingly, we review the district court’s preclusion order for abuse of
discretion. Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206,
212 (2d Cir. 2009). “In determining whether a district court has exceeded its
discretion, we consider the following factors: (1) the party’s explanation for the
failure to comply with the discovery order; (2) the importance of the testimony of
the precluded witness; (3) the prejudice suffered by the opposing party as a result
of having to prepare to meet the new testimony; and (4) the possibility of a
continuance.” Id. at 213 (citation omitted).
On appeal, Brandon — represented by different counsel — contends that
the district court abused its discretion because each of the four factors weighs in
his favor. We disagree. Even assuming, favorably to Brandon, that he is correct
21 21-2554 Brandon v. Royce
as to second and fourth factors (the importance of Dr. Lockley’s testimony and the
possibility of a continuance), the district court assigned little to no weight to those
factors, and Brandon does not offer a persuasive reason why they should carry
more weight on appeal.
As to the first factor, Brandon did not offer a “good explanation” for failing
to comply with discovery. App’x 204. Brandon’s Eighth Amendment claim
“always” hinged on the details of the lighting in housing block B and how
Brandon’s exposure to that constant illumination impacted his health. Id. at 205.
But trial counsel did not offer a persuasive reason for waiting nearly a year to
request an expert witness on the very issue at the heart of the claim.
Brandon argues that the delay of trial following the COVID-19 pandemic
supports his request to reopen discovery a second time, as there was more “time
to prepare an expert report[] [and] to conduct a deposition.” Appellant’s Br. 33
(quoting App’x 200–02). But that argument only further undermines the
explanation offered by trial counsel in support of his second request to reopen
discovery. If trial counsel understood that a 144-day period between his request
for expert testimony and trial on February 1, 2021 would not prevent the parties
from “pushing to get to trial as soon as possible,” why not request expert
testimony in October 2019 when the original trial date (June 15, 2020) was still
more than 200 days away?
Brandon responds that the need for expert testimony only became apparent
after review of “the information learned at Defendant Royce’s February 27
deposition[,] which included light-fixture distances that conflicted
with . . . Brandon’s account.” Appellant’s Br. 32. Even assuming that such
22 21-2554 Brandon v. Royce
information only became apparent after Royce’s deposition and that Dr. Lockley’s
testimony on “the effects of constant illumination on health” was relevant to the
“light-fixture distances” in housing block B, Brandon makes no attempt to explain
the long delay between Royce’s deposition and his request to reopen discovery.
Turning to the third factor, Brandon does not dispute that reopening
discovery to allow new testimony would be prejudicial to Royce, but he asserts
that any such prejudice should be discounted because it would be “de minimis.”
Appellant’s Br. 36–39. As support, Brandon cites our decision in Outley, but, as
that opinion notes, the testimony at issue there “was not the technical or
specialized evidence given by an expert witness[.]” 837 F.2d at 591. Rather, the
plaintiff sought to introduce the lay testimony of two eyewitnesses. Id. The court
determined in that case that meeting the new testimony would have required the
opposing party to suffer only the “inconvenience” of “a brief interview” and
background check. Id.
Here, however, the precluded testimony was expert testimony. As Royce
argued in district court, dealing with the new testimony would have required him
“to investigate the expert’s qualifications, depose the expert witness, and retain
his own rebuttal expert.” App’x 188. Moreover, at the time that Brandon
requested the expert testimony, the case was “trial ready,” id., and Dr. Lockley’s
testimony bore on the crux of Brandon’s claim. “Because [Royce might well] have
been forced, at a very late date in the discovery process, to accommodate
potentially significant shifts in the theories being offered against [him], this factor
cuts in [his] favor.” Softel, Inc. v. Dragon Med. & Sci. Commun., Inc., 118 F.3d 955,
962 (2d Cir. 1997).
23 21-2554 Brandon v. Royce
Given the “wide discretion” the district court has in punishing failure to
conform to the rules of discovery and the two factors weighing heavily against
Brandon, Outley, 837 F.2d at 590, we cannot say that the district court abused its
discretion in precluding Brandon’s expert witness.
CONCLUSION
For the foregoing reasons, we VACATE the district court’s grant of
summary judgment to the defendants on Brandon’s First Amendment free
exercise claim, and we otherwise AFFIRM the judgment of the district court.