Brandon v. Royce et al

Filing 80

OPINION AND ORDER: re: 61 MOTION for Summary Judgment filed by Mark Royce, Leslie Malin, John V. Werlau. The motion for summary judgment is GRANTED IN PART and DENIED IN PART. The Court grants summary judgment in defendants' favor on plaint iff's First Amendment free exercise claim and plaintiff's Eighth Amendment claim to the extent it is based on the installation of light bulbs in November 2015. Plaintiff's Eighth Amendment claim against defendant Royce based on the con stant illumination of plaintiff's cells beginning on December 11, 2015, may proceed. Plaintiff and defense counsel are directed to appear for an in-person status conference on April 9, 2019, at 10:30 a.m., at the United States Courthouse in Whit e Plains, Courtroom 620, at which time the Court will set a trial date and a schedule for pretrial submissions. To conserve resources, to promote judicial efficiency, and in an effort to achieve a faster disposition of this case, the parties, prior t o that date, are directed to discuss whether they are willing to consent, under 28 U.S.C. § 636(c), to conduct all further proceedings, including trial, before the assigned Magistrate Judge. The Clerk is instructed to (i) terminate the motion (D oc. # 61) and (ii) terminate defendants Leslie Malin and John V. Werlau. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied fo r the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED., ( Status Conference set for 4/9/2019 at 10:30 AM in Courtroom 620, 300 Quarropas Street, White Plains, NY 10601 before Judge Vincent L. Briccetti.), Leslie Malin (Deputy Superintendent of Programs) and John V. Werlau (Safety and Security Lieutenant, are sued in their official and individual capacities) terminated. (Signed by Judge Vincent L. Briccetti on 3/15/2019) Copies Mailed By Chambers. (ama)

Copy mailed by Chambers 3-15-19 DH

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CHAMMA K. BRANDON,
:
Plaintiff,
:
:
v.
:
:
MARK ROYCE, LESLIE MALIN, and JOHN V. :
WERLAU, in their official and individual
:
capacities,
:
Defendants.
:
--------------------------------------------------------------x

OPINION AND ORDER
16 CV 5552 (VB)

Briccetti, J.:
Plaintiff Chamma K. Brandon, proceeding pro se and in forma pauperis, brings this
action under 42 U.S.C. § 1983, alleging defendants Mark Royce, Leslie Malin, and John V.
Werlau violated his First Amendment right to free exercise of religion and Eighth Amendment
right to be free from cruel and unusual punishment.
Now pending is defendants’ motion for summary judgment. (Doc. #61).
For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN
PART.
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
The parties have submitted briefs, statements of material facts, supporting affidavits,
declarations, and exhibits, which reflect the following factual background.
At all relevant times, plaintiff was 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”).

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I.

Eid al-Adha Meal
A.

Eid al-Adha

Eid al-Adha (feast of sacrifice) “is a major day of observance for Muslims Worldwide. It
consists of a special prayer service, food, drink and other religious activities.” (Doc. #63
(“Dawkins Decl.”) Ex. D at DEF 000129). 1 According to plaintiff, Eid al-Adha is a four-day
celebration.
DOCCS issues an annual religious holy day calendar, and the 2015 calendar states Eid alAdha was to be observed on September 23, 2015. The calendar says this about observance of
Eid al-Adha:
[A]n observance of a special prayer and feast on the tenth day of the month of DhulHijah; observed through a special Eid prayer in the morning, no later than 9:30 AM.
In accordance with Islamic tradition, offenders should receive a ghusl (shower) and
use their oil before going to the Eid Prayer, and/or event. Because breakfast can
not be eaten before the prayer, participants should be given refreshments
immediately after the prayer.
(Dawkins Decl. Ex. B at DEF 000074).
In a memorandum dated August 24, 2015, Imam Young, the “Coordinating Chaplain,”
indicated the Eid service would occur on September 23 or 24, 2015. (Dawkins Decl. Ex. D at
DEF 000129). The memorandum also made specific provisions for the celebration of Eid alAdha at Sing Sing: Muslim inmates at Sing Sing would (i) commemorate Eid al-Adha with a
prayer service and fellowship activities; (ii) be permitted to take showers in the bath house or
housing unit in the morning on the day of the Eid prayer; (iii) be provided with a morning meal
in the Masjid (mosque); (iv) be provided with an afternoon meal prepared by Muslim cooks; and
(v) be permitted to take their Islamic attire in the chapel. In addition, the memorandum provides,
1

“Doc. #__ at DEF __” refers to the Bates-stamped numbers on the bottom of defendants’
exhibits; “Doc. #__ at ECF __” refers to page numbers automatically assigned by the Court’s
Electronic Case Filing system
2

“A feed-up for the noon meal shall be provided for Muslim inmates in Keep-lock, SHU, or the
Hospital.” (Id.).
In a subsequent memorandum dated September 17, 2015, Jeff McKoy, DOCCS Deputy
Commissioner for Program Services, wrote, “Based on this past weekend’s sighting of the
moon,” Eid al-Adha should take place on September 24, 2015. (Dawkins Decl. Ex. E at DEF
000134).
On September 24, 2015, the Muslims at Sing Sing held Eid prayer, and they ate breakfast
in the mosque in the morning and an Eid lunch meal in the mess hall in the afternoon. The
parties agree plaintiff attended the Eid prayer and received the Eid breakfast and lunch on
September 24.
B.

September 26 Event

In addition to the activities scheduled for September 24, 2015, DOCCS scheduled a
special event for Muslim inmates on September 26, 2015 (the “September 26 event”).
Defendants contend the September 26 event was a “family event” that was “not necessarily
related to the Eid.” (Dawkins Decl. Ex. N (“Young Decl.”) ¶ 12). According to Imam Young,
the September 26 event was “not a religious event,” and could occur days or weeks after Eid alAdha. (Id. ¶ 11).
John Mahoney, DOCCS Recreation Program Leader II, prepared a special event package
for the September 26 event. The special event described in the package is titled, “Eid ul-Adha
Event.” (Dawkins Decl. Ex. A (“Special Event Package”) at DEF 000042). The package’s
menu page contains the following hand-written notation: “No Facility Prepared Food will leave
the Event Area. Any Extra food will be Disposed of at the end of the Event.” (Id. at DEF
000043). Beneath the notation is the signature of defendant Mark Royce, the Deputy

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Superintendent of Security at Sing Sing. Royce states he instructed someone to add the menu
page notation “for safety and security reasons”:
There is serious concern about the security risks involved. Of concern is that
contraband could be secreted in the food. There is no way to search the food, prior
to it leaving the mess hall. Additionally, the feed-up trays could be used as a means
to influence other inmates. Bartering or selling among inmates can lead to extortion
and bribery, as well as theft, all of which undermine the safety and good order of
the facility.
(Dawkins Decl. Ex. K (“Royce Decl.”) ¶ 5).
According to Royce, he was presented with the special event package on
September 8, 2015, which he reviewed and signed the same day. Royce states this
accords with normal practice: for special events for Muslim inmates, the recreation
program leader drafts special event packages, the Imam signs off, and the package is
presented to the executive team (of which Royce is a member) for approval. The package
is then distributed to different departments, including the mess hall, so the staff will know
what arrangements have been made regarding the distribution of food.
C.

Withdrawal from the September 26 Event

Plaintiff was included in the special event package’s list of inmates approved to attend
the September 26 event. However, plaintiff asserts that at Jumu’ah services on September 25,
2015, Imam Young announced that superintendents had told him the September 26 event was
over capacity. According to both plaintiff and his fellow inmate Jerry Johnson, the
administrative chaplain clerk, Imam Young said that “if some of the inmates were willing to
voluntarily withdraw from attending the Eid Celebration, all of the invited guest[s] would be able
to attend.” (Doc. #72 (“Johnson Decl.”) ¶ 5; Doc. #74 (“Brandon Decl.”) ¶ 5). Moreover,
plaintiff and Johnson assert that Imam Young “assured that as a condition to the voluntary
withdrawal, the volunteers would be provided a feed-in meal in commemoration of the Eid

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Celebration.” (Brandon Decl. ¶ 6; see also Johnson Decl. ¶ 6). The parties agree that plaintiff
voluntarily withdrew from attending the September 26 event.
Further, plaintiff attached to his declaration in opposition to the instant motion a chart
entitled “Prayer Service Religious Feed-in Trays,” dated September 25, 2015, and purportedly
from Imam Young to the mess hall supervisor. (Brandon Decl. Ex. 1 at ECF 11). Plaintiff is
included on the list. Plaintiff also testified he was not present when the list was printed and that
he does not know who drafted it; he received it from an inmate. Plaintiff does not remember
which inmate gave him the list but believes it was a chaplain, because only a chaplain would
have had access to it.
Imam Young, however, states he did not ask inmates to voluntarily withdraw from the
September 26 event in exchange for a feed-up tray. Indeed, Imam Young asserts he did not
generate or sign a feed-up list or instruct inmates to prepare feed-up trays on September 26, and
at least once informed plaintiff that he was not entitled to a feed-up tray on September 26. In
addition, according to Imam Young, feed-ups must be written into the special event package
ahead of time, and no feed-ups were written into the special event package for the September 26
event.
Likewise, defendant Lesley Malin, DOCCS Deputy Supt. for Program Services, and
Royce state they were not aware of any feed-up list for the September 26 event. Malin also
asserts the executive team would not have approved an arrangement involving feed-up trays
because of the security risks involved. According to Malin, feed-up trays could be used as
currency, to influence other inmates, or to transfer contraband, and “could pose a health risk in
that inmates can get sick if they choose to eat the food after holding it in their cells for days.”
(Dawkins Decl. Ex. L (“Malin Decl.”) ¶ 19).

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D.

Disposal of Feed-Up Meals

Plaintiff did not attend the September 26 event or receive a feed-up tray. Per the
declaration of fellow inmate John McClellan, Imam Young had directed McLellan and other
inmate-helpers to prepare the feed-up trays for delivery to the inmates on the list attached to
plaintiff’s declaration. But McLellan states Imam Young left soon after giving that instruction,
and another lieutenant asked about the trays. McClellan and other inmates informed the
lieutenant “why they were prepared and the significance” of the meal, and suggested the
lieutenant consult with Imam Young before ordering them to throw the trays away. (Doc. #3 Ex.
D (“McClellan Decl.”) at ECF 39). However, according to McClellan, the lieutenant ignored
him and ordered the inmates to throw the trays out.
Indeed, defendant Lt. John V. Werlau states he ordered the extra food from the
September 26 event be disposed of. According to Werlau: (i) the special event package did not
contain any feed-up provisions or list of inmates who should receive feed-up meals; (ii) the
special event package in fact contained a provision specifically prohibiting prepared food from
leaving the event area and ordering disposal of extra food; (iii) Werlau believed Sing Sing’s
policies and procedures required paperwork approving the transportation of food from the mess
hall to the housing blocks; and (iv) Werlau had spoken to Royce by telephone, and Royce had
verified that no food should be allowed to leave the mess hall. Werlau also cited safety concerns
involved in providing feed-up meals: in addition to the concerns Malin and Royce expressed,
Werlau stated there were “hygienic reasons for not allowing inmates to have a meal tray in their
cells such as to maintain the cleanliness and prevent rodents, etc.” (Dawkins Decl. Ex. M
(“Werlau Decl.”) ¶ 14).

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Plaintiff states he complained to Young about not receiving a feed-up meal. Plaintiff
asserts Young “consoled me, while at the same time condemning defendant Werlau for ordering
Inmate McClellan and the other inmates to discard the meals.” (Brandon Decl. ¶ 14). Moreover,
according to plaintiff, he told Young he intended to file a grievance, and Young encouraged him
to do so.
Plaintiff also avers he complained to fellow inmate Johnson (the administrative chaplain
clerk). Johnson concurs and states he drafted and mailed a formal complaint to Malin, which he
attached to his declaration in opposition to the motion for summary judgment. (Johnson Decl.
Ex. 3 at ECF 18). According to Johnson, he did not receive a response. However, Malin says
she was not aware of plaintiff’s allegations that he had not received a feed-up meal for the
September 26 event until she read the complaint in this lawsuit.
II.

Cell Lighting
A.

Installation of Light Bulbs in November 2015

Plaintiff states he was initially housed in housing block B when he arrived at Sing Sing.
He was then relocated to housing block A on July 29, 2015, and back to housing block B on
August 8, 2015. On or about October 26, 2015, a work order was submitted stating light bulbs in
housing block B were “out of order.” (Dawkins Decl. Ex. G at DEF 000318). Plaintiff,
however, states Royce ordered installation of new light bulbs because it was not bright enough
on plaintiff’s housing block. In contrast, Royce asserts he never stated the lights on housing
block B were not bright enough.
According to Sing Sing Maintenance Supervisor Paulo Lopes, on or about November 23,
2015, he sent inmate workers to replace the light bulbs. The parties attest to different
specifications regarding the new lightbulbs. Mr. Lopes asserts approximately five “200 watt,

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Luma Pro, Model No. 5MPX4, Compact Fluorescent light bulbs were installed.” (Dawkins
Decl. Ex. O (“Lopes Decl.”) ¶ 4). Lopes further states the contractor had accidentally sent the
Luma Pro bulbs, and the accident was not discovered until after inmates filed grievances
complaining about the bulbs’ brightness. According to Lopes, on or about December 21, 2015,
he instructed workers to replace the light bulbs with “68 watt equivalent 300 watt, Compact
Fluorescent light bulbs.” (Id. ¶ 9).
Plaintiff, on the other hand, asserts “several 1000-watt wide-range high intensity stadiumstyled light bulbs were installed” ten to fifteen feet away from plaintiff’s cell, “blanketing the
cell in constant illumination.” (Brandon Decl. ¶¶ 21, 23). According to plaintiff, he recognized
the light bulbs from his prior work as a maintenance worker and facility manager at “Sportime
Tennis,” a tennis facility in Manhattan, where he handled the same type of bulbs. (Id. ¶ 22).
Plaintiff testified that the bulb “looks exactly the same, the brightness of it seems the same, the
illumination of it seems the same, . . . and even certain officers that walk past said the same.”
(Dawkins Decl. Exs. I & J (together, “Brandon Dep.”) at 211). However, plaintiff also testified
that he “never got a chance to actually inspect these bulbs” (id.); “never physically saw or
handled the light bulbs” himself (id. at 423); did not see any writing on the bulbs indicating their
wattage (id.); and did not know the brand of the bulbs (id. at 210).
B.

Constant Illumination

Plaintiff asserts the purported 1000-watt light bulbs “were left in constant illumination
24-hours/7-days a week.” (Brandon Decl. ¶ 21). Moreover, according to plaintiff, those light
bulbs were replaced with bulbs “similar in intensity” that “also remained in constant
illumination.” (Id. ¶ 24).

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Plaintiff avers that after the installation of replacement bulbs near his cell, he was
relocated three times within housing block B—on August 16, 2016, January 10, 2017, and
January 17, 2018—yet until at least January 17, 2018, he remained subject to constant
illumination. Plaintiff states he was not allowed to block or shield himself from the light, and the
illumination “caused a host of medical ailments, namely: sleep deprivation; insomnia; severe
migraines; reoccurring episodes of dizziness; hallucinations, and severe psychological trauma.”
(Brandon Decl. ¶ 29).
Plaintiff also states in housing block A the lights go out every night at around 10:30 p.m.
and are turned back on at around 6:00 a.m. In addition, fellow inmate Anthony Arriaga states he
was transferred to housing block A in October 2017, and concurs that “every night, at or around
10:30 p.m., among other light bulbs, the lights illuminating L and P Galleries are turned off; and
on or about 6:00 a.m. they’re turned back on.” (Arriaga Decl. ¶ 21). Plaintiff asserts there is no
security classification or other difference between the inmates housed in housing blocks A and
B. Royce, however, states there is no difference in the lighting policies on housing blocks A and
B.
C.

Grievances and Decisions

Plaintiff sent a letter to Royce dated November 28, 2015, complaining about the newlyinstalled bulbs and the constant illumination. Royce responded by memorandum dated
December 11, 2015, stating plaintiff’s complaint was “being investigated and followed up by the
facility Maintenance Department.” (Dawkins Decl. Ex. H at DEF 000135).
Plaintiff also filed a grievance dated November 28, 2015, complaining of the same issues.
The inmate grievance review committee (“IGRC”) responded on January 7, 2016, stating it
agreed with plaintiff’s grievance. The IGRC’s response also noted that the bulbs installed in

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November 2015 had since been changed, and that the “DSS” should address which security
lights stayed on and which were turned off. (Dawkins Decl. Ex. P (“Grievances”) at ECF 3).
Plaintiff agreed with the IGRC response and appealed to the superintendent. The superintendent
accepted the grievance in part, stating: “Investigation reveals the light bulbs on U Gallery in
[housing block B] were in fact placed there in error. Maintenance staff immediately replaced the
light bulbs after being advised of the error. Grievant advised to sign up for sick call to address
their medical concerns.” (Id. at ECF 4).
Plaintiff appealed the superintendent’s decision to DOCCS’s Central Office Review
Committee (“CORC”), which unanimously upheld the superintendent’s decision: “CORC notes
that the upper tier lights are kept on 24 hours a day 7 days a week for security reasons. CORC
also notes that the wrong bulbs were used and that they have since been replaced. CORC advises
the grievants to address medical concerns via sick call.” (Grievances at ECF 10).
In addition, Royce states staff and inmate safety requires that lights stay on in the housing
blocks at Sing Sing “24 hours per day, 7 days a week.” (Royce Decl. ¶ 10). According to
Royce:
The housing blocks are enormous. The lights are sporadically spread out on the
housing block. They allow light into the cells for visual counts and inspections.
When making rounds, an officer must be able to see that the inmate is alive and
breathing. It also allows the officer to make sure that the inmate does not have any
contraband or weapons that may be used to harm himself or others. . . .
The lights on the housing blocks cannot be completely turned off because during
the night, Corrections Officers need to be able to see inside the cell to check on the
well-being of each inmate.
(Royce Decl. ¶¶ 11, 16).

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DISCUSSION
I.

Standard of Review
The Court must grant a motion for summary judgment if the pleadings, discovery

materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit under the governing
law . . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. at 248. The Court “is not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010) (citation omitted). It is the moving party’s burden to establish the absence of any genuine
issue of material fact. Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010).
If the non-moving party has failed to make a sufficient showing on an essential element
of his case on which he has the burden of proof, then summary judgment is appropriate. Celotex
Corp. v. Catrett, 477 U.S. at 323. If the non-moving party submits “merely colorable” evidence,
summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249–50. The
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations and quotation

11

omitted). The mere existence of a scintilla of evidence in support of the non-moving party’s
position is likewise insufficient; there must be evidence on which the jury could reasonably find
for him. Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
reasonable inference could be drawn in favor of the non-moving party on the issue on which
summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004).
In deciding a motion for summary judgment, the Court need only consider evidence that
would be admissible at trial. Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
746 (2d Cir. 1998).
II.

Free Exercise Claim
Defendants argue plaintiff’s free exercise claim fails as a matter of law because

defendants have a legitimate penological interest in preventing food from being transported to
the housing blocks.
The Court agrees.
“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. Estate of Shabazz,
482 U.S. 342, 348 (1987) (internal citations omitted). To prove a violation of his First
Amendment right to free exercise of religion, an inmate must show “at the threshold that the
disputed conduct substantially burdens his sincerely held religious beliefs.” Salahuddin v.
Goord, 467 F.3d 263, 274–75 (2d Cir. 2006) (internal citation omitted). “The defendants then

12

bear the relatively limited burden of identifying the legitimate penological interests that justify
the impinging conduct.” Id. at 275. Finally, the inmate must show the articulated concerns were
irrational. Id.
A regulation that burdens a protected right must be reasonably related to a legitimate
penological interest to pass constitutional muster. Salahuddin v. Goord, 467 F.3d at 274. Courts
evaluate four factors in determining reasonableness:
[(i)] whether the challenged regulation or official action has a valid, rational
connection to a legitimate governmental objective; [(ii)] whether prisoners have
alternative means of exercising the burdened right; [(iii)] the impact on guards,
inmates, and prison resources of accommodating the right; [(iv)] and the existence
of alternative means of facilitating exercise of the right that have only a de minimis
adverse effect on valid penological interests.
Id. (citing Turner v. Safley, 482 U.S. 78, 90–91 (1987) (footnote omitted)).
Here, defendants have established as a matter of law that they had a legitimate
penological interest in prohibiting the provision of feed-up meals to inmates. Indeed, defendants
identify numerous legitimate governmental objectives, citing (i) the concern that inmates could
secret contraband in the food, which cannot be searched before it leaves the mess hall; (ii) the
ability to use feed-up 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. Plaintiff offers no reason why any of these valid penological interests is
irrational.
Moreover, defendants’ regulation, in this case, was reasonably related to the valid
penological interests. In particular, plaintiff had an alternative means of exercising his right—by
attending the September 26 event and receiving the very meal of which he was deprived.

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Accordingly, defendants are entitled to summary judgment on plaintiff’s free exercise
claim.
III.

Eighth Amendment Claim
Defendants argue plaintiff’s Eighth Amendment claim fails as a matter of law because

plaintiff fails to establish Royce was deliberately indifferent to his health and safety.
The Court agrees that plaintiff’s claim based on the installation of light bulbs in
November 2015 fails as a matter of law. However, genuine issues of material fact preclude
summary judgment on plaintiff’s claim to the extent it is based on the constant illumination of
his cells from December 11, 2015, through at least January 17, 2018.
To establish a violation of Eighth Amendment rights, an inmate must satisfy an objective
prong and a mens rea prong. Namely, an inmate must show (i) “a deprivation that is
‘objectively, sufficiently serious’ that he was denied ‘the minimal civilized measure of life’s
necessities,’” and (ii) “a ‘sufficiently culpable state of mind’ on the part of the defendant official,
such as deliberate indifference to inmate health or safety.” Gaston v. Coughlin, 249 F.3d 156,
164 (2d Cir. 2001).
To satisfy the objective element, “the inmate must show that the conditions, either alone
or in combination, pose an unreasonable risk of serious damage to his health.” Walker v. Schult,
717 F.3d 119, 125 (2d Cir. 2013) (internal citation omitted). “Thus, prison officials violate the
Constitution when they deprive an inmate of his ‘basic human needs’ such as food, clothing,
medical care, and safe and sanitary living conditions.” Id. “While the Eighth Amendment’s
prohibition against cruel and unusual punishment ‘does not mandate comfortable prisons,’ the

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conditions of confinement must be at least ‘humane.’” Gaston v. Coughlin, 249 F.3d at 164
(internal citations omitted)).
“[S]leep is critical to human existence, and conditions that prevent sleep have been held
to violate the Eighth Amendment.” Walker v. Schult, 717 F.3d at 126. Therefore, “[r]equiring
inmates to live in constant illumination can . . . under certain circumstances, rise to the level of
an Eighth Amendment violation.” Collins v. Fischer, 2018 WL 1626528, at *6 (S.D.N.Y. Mar.
30, 2018) (quoting Holmes v. Fischer, 2016 WL 552962, at *17 (W.D.N.Y. Feb. 10, 2016)). 2
The mens rea component is satisfied by showing “the defendant ‘acted with more than
mere negligence’ by, for instance, ‘knowing of, and disregarding, an excessive risk to inmate
health or safety.’” Garraway v. Griffin, 707 F. App’x 16, 19 (2d Cir. 2017) (summary order)
(alterations omitted) (quoting Walker v. Schult, 717 F.3d at 125). “Evidence that a risk was
obvious or otherwise must have been known to a defendant may be sufficient for a fact finder to
conclude that the defendant was actually aware of the risk.” Walker v. Schult, 717 F.3d at 125
(internal quotation omitted).
Courts’ analyses of claims based on constant illumination are “‘fact-driven, based upon
the degree of illumination, the discomfort that it caused, and the penological concern for the
lighting.’” Booker v. Maly, 2014 WL 1289579, at *18 (N.D.N.Y. Mar. 31, 2014) (collecting
cases), aff’d, 590 F. App’x 82 (2d Cir. 2015) (summary order); see also Shepherd v. Ault, 982 F.
Supp. 643, 647 (N.D. Iowa 1997) (“[E]ven the question of whether constant lighting serves a
legitimate penological purpose depends upon the circumstances of the case.”). Courts also look
to the length of time plaintiffs are subjected to the constant illumination. See Shepherd v. Ault,

2

Because plaintiff is proceeding pro se, he will be provided with copies of all unpublished
opinions cited in this ruling. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
15

982 F. Supp. at 648 (holding plaintiffs’ claims that they were subjected to 283 and 550 nights
under constant illumination gave rise to “[v]ery different inferences” than constant illumination
for a shorter period of time).
Courts have found constant illumination involving low-wattage bulbs—from five-watt
fluorescent bulbs to a single forty-watt bulb—permissible under the Constitution. See McGee v.
Gold, 2010 WL 5300805, at *5 (D. Vt. Aug. 3, 2010) (collecting cases), report and
recommendation adopted sub nom. McGee v. Pallito, 2010 WL 5389996 (D. Vt. Dec. 20,
2010), vacated and remanded on other grounds sub nom. Kimber v. Tallon, 556 F. App’x 27 (2d
Cir. 2014) (summary order). Yet one circuit court reversed a district court’s grant of summary
judgment because plaintiff had produced evidence that “large florescent lights directly in front of
and behind his cell shone into his cell 24 hours a day, so that his cell was constantly illuminated,
and [plaintiff] had no way of telling night or day,” causing the plaintiff sleeping, mental, and
psychological problems. Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) (internal quotation
omitted), opinion amended on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998).
Plaintiff’s claim against Royce based on the installation of the so-called 1000-watt light
bulbs in November 2015 fails as a matter of law because plaintiff fails to satisfy the mens rea
component. The record contains no evidence that Royce consciously disregarded a risk to
plaintiff’s health or safety. Indeed, plaintiff has not adduced any evidence that Royce was
involved in the installation of the light bulbs in November 2015 or to support plaintiff’s
allegation that Royce said housing block B was not bright enough. In fact, the only evidence in
the record is that Maintenance Supervisor Lopes, a non-party in this case, ordered inmates to

16

install light bulbs that a contractor had mistakenly provided. 3 Moreover, there is no evidence
Royce delayed the light bulbs’ replacement after inmates complained.
That said, however, there are genuine issues of material fact preventing summary
judgment on plaintiff’s claim based on the constant illumination of his cells beginning on
December 11, 2015. There are several material issues of fact regarding whether the constant
illumination to which plaintiff was exposed posed an unreasonable risk of serious damage to
plaintiff’s health. First, the light bulbs that defendants assert plaintiff was exposed to during that
time—68 watt equivalent 300 compact fluorescent bulbs—are of substantially higher wattage
than in cases in which summary judgment has been granted. Cf. Booker v. Maly, 2014 WL
1289579, at *18 (three-watt LED night light). Second, plaintiff attests that the light bulbs were
only ten to fifteen feet away from his cell, yet he was not permitted to block or shield himself
from the light. Cf. id. at *19 (inmate’s cell would normally be dark because of a small window
in the door). Third, plaintiff avers he was subjected to constant illumination until at least January
17, 2018—some 768 days after Royce responded to plaintiff’s original complaint on December
11, 2015. And fourth, plaintiff asserts that he suffered far more than mere discomfort, including
migraines, dizziness, and excessive fatigue.
There are also genuine issues of material fact regarding the mens rea component.
Plaintiff has offered sufficient evidence to permit a reasonable juror to conclude Royce was
aware of the harm plaintiff alleged he was suffering from at least December 11, 2015, when he
responded to plaintiff’s November 28, 2015, letter complaining about the constant illumination
and installation of the supposed 1000-watt light bulbs. Indeed, in that letter, plaintiff specifically
identified “24-hour lights” as an issue and stated he was “beginning to develop migraine

3

Thus, even if Lopes were a defendant, his actions amount to non-actionable negligence.
17

headaches, dizziness, and excessive fatigue,” among other symptoms. (Dawkins Decl. Ex. H at
DEF 000136–37).
Finally, there is a genuine issue of material fact regarding whether defendants’ proffered
penological interests are sufficient to conclude that Royce was not deliberately indifferent. 4
Although Royce states some light bulbs at Sing Sing are turned off at night, defendants have not
offered any evidence that an alternative lighting policy serving the same penological interests,
but with a less detrimental effect, could not be implemented.
Accordingly, defendants are entitled to summary judgment on plaintiff’s Eighth
Amendment claim to the extent it is based on the installation of light bulbs in November 2015.
However, summary judgment is denied on plaintiff’s Eighth Amendment claim to the
extent it is based on the constant illumination of his cells beginning on December 11, 2015.
IV.

Personal Involvement
Plaintiff has presented sufficient evidence of Royce’s involvement in the purported

Eighth Amendment violation based on the constant illumination of his cells beginning on
December 11, 2015, for his claims to proceed against Royce.
“It is well settled in this Circuit that personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages under § 1983.” Spavone v.

4

“The precise role of legitimate penological interests is not entirely clear in the context of
an Eighth Amendment challenge to conditions of confinement.” Quick v. Graham, 2014 WL
4627108, at *9 (N.D.N.Y. Sept. 11, 2014) (quoting Grenning v. Miller–Stout, 739 F.3d 1235,
1240 (9th Cir. 2014)). To the extent consideration of legitimate penological interests is relevant,
the Court considers it in analyzing the mens rea prong of plaintiff’s Eighth Amendment claim.
See id. (“[O]ther courts which have considered penological justification in the context of claims
involving continuous prison lighting have related it to the subjective prong of the Eighth
Amendment analysis.”) (citing Chavarria v. Stacks, 102 F. App’x 433, 456 (5th Cir. 2004)).
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N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (internal citation omitted). A
supervisor’s personal involvement in an alleged constitutional violation may be established if:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). 5
Regarding the second factor, courts examine the degree of response to plaintiff’s
complaints. See Mateo v. Fischer, 682 F. Supp. 2d 423, 430 (S.D.N.Y. 2010). Courts
distinguish “between summarily denying a grievance and denying it in a detailed response that
specifically addresses the plaintiff’s allegations.” Id. (internal citations omitted). Thus, “district
courts have found personal involvement based on denying a grievance where (1) the official
undertakes some kind of investigation into the initial denial; (2) the official provides a detailed
and specific response to the grievance rather than a pro forma denial; or (3) the grievance
involves an ongoing violation ‘such that the supervisory official who reviews the grievance can
remedy it directly.’” Quick v. Graham, 2014 WL 4627108, at *11 (quoting Burton v. Lynch,
664 F. Supp. 2d 349, 360 (S.D.N.Y. 2009)).
Plaintiff has adduced sufficient evidence to create a genuine issue of material fact
regarding Royce’s personal involvement. First, plaintiff’s grievance complained of an ongoing

5

After Ashcroft v. Iqbal, district courts within this circuit have been divided as to whether
claims alleging personal involvement under the second, fourth, and fifth of these factors remain
viable. See Marom v. City of New York, 2016 WL 916424, at *15 (S.D.N.Y. Mar. 7, 2016).
The Second Circuit has yet to resolve this dispute. Id. However, defendants do not argue that
Iqbal invalidated the Colon test. Therefore, for purposes of this motion, the Court assumes the
continued viability of the second, fourth, and fifth Colon factors.
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violation—namely, the continued constant illumination of his cell. Second, there is at least some
evidence Royce undertook an investigation into plaintiff’s complaint. After plaintiff sent Royce
a letter complaining about the constant illumination, Royce responded by stating plaintiff’s
complaint was “being investigated and followed up by the facility Maintenance Department.”
(Dawkins Decl. Ex. H at DEF 000135). And third, there is a material issue of fact regarding
whether Royce had the authority to change the lighting policy: Royce’s declaration states he
“would have directed that maintenance check the light bulbs and replace the light bulbs if they
were incorrect,” indicating Royce had at least some authority to remedy lighting issues. (Royce
Decl. ¶ 15). Moreover, and perhaps most significantly, the IGRC response to plaintiff’s
grievance specifically identified the Deputy Supt. of Security as the proper party to address
plaintiff’s grievance as it related to which security lights stayed on and off.
For all these reasons, summary judgment based on the lack of Royce’s personal
involvement is not warranted.
V.

Qualified Immunity
Royce is not entitled to qualified immunity on plaintiff’s Eighth Amendment claim.
Qualified immunity shields government officials whose conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The scope of qualified immunity is
broad, and it protects “all but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “A qualified immunity defense is established
if (a) the defendant’s action did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not violate such law.” Salim v. Proulx,
93 F.3d 86, 89 (2d Cir. 1996). “[F]or a right to be clearly established for purposes of

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a qualified immunity defense, the precise conduct at issue need not previously have been ruled
unlawful.” Griffin v. Amatucci, 611 F. App’x 732, 734 (2d Cir. 2015) (summary order)
(alterations in original) (quoting Zahrey v. Coffey, 221 F.3d 342, 357 (2d Cir. 2000)). “Lower
court cases in this circuit and cases from other circuits . . . have clearly held that continuing
illumination that interferes with an inmate’s sleep may, at least in the absence of substantial
penological justification, violate the Eighth Amendment.” Quick v. Graham, 2014 WL 4627108,
at *12.
Here, plaintiff’s right to humane conditions of confinement, particularly those that do not
prevent an inmate from adequate sleep, was clearly established at the time of the purported
violation beginning in December 2015. Indeed, plaintiff’s specific right to be free from constant
illumination was clearly established at that time as well. Furthermore, for the same reasons
stated above in discussing the mens rea component of plaintiff’s Eighth Amendment claim, there
are genuine issues of material fact regarding whether it was objectively reasonable for Royce to
believe that his action did not violate the law.
Therefore, Royce is not entitled to qualified immunity on plaintiff’s Eighth Amendment
claim at this time.
VI.

Injunctive Relief
On March 8, 2019, plaintiff notified the Court that he had been released from prison.

(See Doc. #79). Therefore, his claims for injunctive and declaratory relief are moot. See Pugh v.
Goord, 571 F. Supp. 2d 477, 489 (S.D.N.Y. 2008).
Accordingly, plaintiff’s claim against Royce in his official capacity is dismissed.

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CONCLUSION
The motion for summary judgment is GRANTED IN PART and DENIED IN PART.
The Court grants summary judgment in defendants’ favor on plaintiff’s First Amendment
free exercise claim and plaintiff’s Eighth Amendment claim to the extent it is based on the
installation of light bulbs in November 2015. Plaintiff’s Eighth Amendment claim against
defendant Royce based on the constant illumination of plaintiff’s cells beginning on December
11, 2015, may proceed.
Plaintiff and defense counsel are directed to appear for an in-person status
conference on April 9, 2019, at 10:30 a.m., at the United States Courthouse in White Plains,
Courtroom 620, at which time the Court will set a trial date and a schedule for pretrial
submissions. To conserve resources, to promote judicial efficiency, and in an effort to
achieve a faster disposition of this case, the parties, prior to that date, are directed to
discuss whether they are willing to consent, under 28 U.S.C. § 636(c), to conduct all further
proceedings, including trial, before the assigned Magistrate Judge.
The Clerk is instructed to (i) terminate the motion (Doc. #61) and (ii) terminate
defendants Leslie Malin and John V. Werlau.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Dated: March 15, 2019
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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