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

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,

, 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.

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.”

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.

“A list of [those] confined

Muslim inmates [was] attached.”

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,

, 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.

Brandon was

included on the list.

But the provenance of that list is unknown. Brandon,

, 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.

. Shortly thereafter, Defendant

Werlau arrived. See 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.

at 143 ¶ 2. But Werlau

ordered that the trays be discarded. See 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,

, at *2. Rather, it was a “family event”

open to Muslim inmates and their guests.

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.

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.”

. 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].”

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

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,

, 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,

, at *4. But according to Brandon, maintenance

workers mistakenly installed 1000-watt, wide-range, high-intensity, “stadium-

styled light bulbs.”

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.

Royce responded

in a memorandum dated December 11, 2015 that Brandon’s complaint was “being

investigated and followed up by the facility Maintenance Department.”

.

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,

, 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.”

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.”

.

III. Proceedings Below

Proceeding pro se and under

, 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,

(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,

(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,

, 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,

, at *7. The district court held that claim failed as a matter of law.

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,

, 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.”

.

2.

The district court, however, denied the government’s motion for summary

judgment on Brandon’s Eighth Amendment claim.

. 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.

. Royce objected both to the expert testimony and to the

motion to reopen discovery.

, 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,

(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.,

(2d Cir. 2023) (citation omitted). “We may consider only

the evidence before the district court.” Salahuddin v. Goord,

(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.,

(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.

“The moving party bears the initial burden of showing why it is entitled to

13 21-2554 Brandon v. Royce

summary judgment.” Salahuddin,

. “If the movant makes this

showing . . . , the burden shifts to the nonmovant to point to record evidence

creating a genuine issue of material fact.”

. 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.

. “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,

(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,

(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.’”

(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,

(2d Cir. 2003) (alteration in original)

(quoting Benjamin v. Coughlin,

(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,

. The

same analysis applies to an individual decision to deny a prisoner the ability to

engage in some requested religious practice. Ford,

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,

(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.,

. 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.”

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

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.”

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,

, 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,

(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,

(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,

(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,

(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.”

(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[.]”

. Rather, the

plaintiff sought to introduce the lay testimony of two eyewitnesses.

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.

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,”

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.,

,

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,

, 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.

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