                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2003

Williams v. Morton
Precedential or Non-Precedential: Precedential

Docket No. 02-3653




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                                  PRECEDENTIAL

                                        Filed September 9, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 02-3653


                      JAMES WILLIAMS;
                    ISHMON STALLWORTH,
                                   Appellants
                                  v.
           WILLIS E. MORTON; J. BLACKSTONE;
              F. JONES; ROY L. HENDRICKS;
             WALTER WISE; FRANK GRAVES

      On Appeal from the United States District Court
               for the District of New Jersey
                   (D.C. No. 98-cv-04310)
        District Judge: Hon. Garrett E. Brown, Jr.

                     Argued June 26, 2003
      Before: SLOVITER, AMBRO, Circuit Judges, and
                 TUCKER,* District Judge

                   (Filed: September 9, 2003)

                         Christopher J. Michie
                         John Bellwoar (Argued)
                         Dechert, Price & Rhoads
                         Princeton, N.J. 08543
                            Attorneys for Appellants

* Hon. Petrese B. Tucker, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
                              2


                      David Samson
                       Attorney General of New Jersey
                      David M. Ragonese (Argued)
                       Deputy Attorney General of
                       New Jersey
                      Patrick DeAlmeida
                       Deputy Attorney General of
                       New Jersey
                      Trenton, N.J. 08625
                        Attorneys for Appellees


                 OPINION OF THE COURT

SLOVITER, Circuit Judge.
   Before us is the appeal by prisoners from the order of the
District Court granting summary judgment to prison
officials and employees as to the prisoners’ claims that their
constitutional rights to the free exercise of religion and
equal protection have been violated by the prison’s failure
to provide them with meals they contend are required by
their religious beliefs. We further consider whether the
District Court abused its discretion by admitting the
declaration and deposition testimony of a witness into the
summary judgment record.

                              I.

                       BACKGROUND
   Plaintiffs Ishmon Stallworth and James Williams
(“Prisoners”), inmates at the New Jersey State Prison
(“NJSP”), filed suit against Willis E. Morton, Roy Hendricks,
Walter Wise, and Frank Graves (“Prison Officials”), all of
whom are either former or current NJSP officials, in the
United States District Court for the District of New Jersey
pursuant to 42 U.S.C. § 1983. The crux of Prisoners’ claims
is that the Prison Officials violated their constitutional
rights by failing to provide them with Halal meat meals in
conformity with their religious beliefs. A Halal, or lawful,
                                   3


diet includes fruits, vegetables, seafood, and meat from
herbivorous animals such as cows and chickens that are
properly slaughtered. The opposite of Halal food is Haram
food, which is prohibited or unlawful and includes pork
and meat from carnivorous animals. Halal foods can
become contaminated if they are commingled with Haram
items.
  Currently, the different diets provided by the NJSP fall
into four general categories: (1) a regular meal which is
served to approximately 600 inmates; (2) a series of health-
related diets with low sodium, low cholesterol, and reduced
calories which are served to about 350 inmates; (3) a
Kosher diet that is provided to 4 Jewish inmates; and (4) a
religious vegetarian diet served to approximately 225
inmates who cannot eat the regular prison diet for religious
reasons.1 The regulation creating the religious vegetarian
meal reads:
     An inmate who cannot eat the food served to the
     general population because of the inmate’s religious
     beliefs may request a religious vegetarian diet. Upon
     review and approval of the request by the Chaplain of
     the correctional facility in accordance with this
     subchapter, nutritionally balanced vegetarian meals
     shall be provided to the inmate in place of the food
     served to the general population.
N.J.A.C. § 10A:17-5.9
  On behalf of themselves and other Muslim inmates,
Prisoners contend that, as applied, this regulation violates
their sincerely held religious belief that they are required to
consume Halal meat in their diet. Their complaint alleges
that the Prison Officials violated their rights under the Free
Exercise Clause of the First Amendment2 by not providing
them with Halal meat and the Equal Protection Clause of

1. The description of the various diets offered at NJSP comes from the
deposition testimony of Lorenza Graves, the prison’s food service
supervisor.
2. The First Amendment provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof . . .” U.S. Const. amend. I.
                                    4


the Fourteenth Amendment3 by providing Kosher meals
with meat to Jewish prisoners without providing Halal meat
to Muslim inmates. They further claim that the Prison
Officials violated their rights under the New Jersey
Constitution    and    the     New    Jersey Law    Against
Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. Prisoners
requested an injunction that would require the NJSP to
include Halal meat in their diet and damages for the alleged
violations of their constitutional rights.4
  Analyzing Prisoners’ constitutional claims under the four-
part test enunciated by the Supreme Court in Turner v.
Safley, 482 U.S. 78 (1987), the District Court granted the
Prison Officials’ motion for summary judgment.5 Prisoners
timely appealed.

                                    II.

                             DISCUSSION
A.   Jurisdiction and Standard of Review
  We have jurisdiction to hear this appeal pursuant to 28
U.S.C. § 1291. We exercise plenary review over the District
Court’s decision to grant summary judgment. DeHart v.
Horn, 227 F.3d 47, 50 (3d Cir. 2000) (en banc). Summary
judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment
as a matter of law. Id. We must view all evidence and draw

3. The Fourteenth Amendment reads in relevant part: “[N]or shall any
State . . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. XIV.
4. In their appellate brief, Prisoners refine their request as seeking “to
compel NJSP to include Halal meat in at least some of the Halal meals
provided Muslim prisoners.” Br. of Appellants at 8.
5. It should be noted that the District Court denied the Prison Officials’
summary judgment motion as to Prisoners’ claims that their First
Amendment rights were violated by several past instances of
contamination of their current vegetarian diet. However, Prisoners
dismissed this claim in order to expedite their appeal of the claims
denied by the District Court. Accordingly, this issue is not before us.
                              5


all inferences therefrom in the light most favorable to the
nonmoving party, here Prisoners. Id.
B.   Free Exercise Claim
  As to their free exercise claim, Prisoners concede that the
District Court applied the correct test as enunciated in
Turner but argue that it incorrectly applied that test to the
facts in the record. According to Prisoners, there is
sufficient evidence creating a genuine issue of material fact
as to whether the Turner factors weigh in favor of the Prison
Officials, thereby making summary judgment inappropriate.
  In Turner, the Supreme Court considered the proper
standard under which courts are to review prison
regulations that are challenged on constitutional grounds.
The Court considered two somewhat competing principles,
the first of which is that federal courts “must take
cognizance of the valid constitutional claims” of inmates.
Turner, 482 U.S. at 84. This judicial cognizance
notwithstanding, courts must remember that they are “ill
equipped to deal with the increasingly urgent problems of
prison administration and reform.” Id. (citation omitted).
Bearing these dual principles in mind, the Court concluded
that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Id. at
89.
  Thereafter, the Turner Court provided the following four
factors to consider when applying its newly enunciated
reasonableness standard:
     First, there must be a valid, rational connection
     between the prison regulation and the legitimate
     governmental interest put forward to justify it. . . . A
     second    factor    relevant     in   determining    the
     reasonableness of a prison restriction . . . is whether
     there are alternative means of exercising the right that
     remain open to prison inmates. . . . A third
     consideration is the impact accommodation of the
     asserted constitutional right will have on guards and
     other inmates, and on the allocation of prison
     resources generally. . . . Finally, the absence of ready
                              6


     alternatives is evidence of the reasonableness of a
     prison regulation.
Id. at 89-90.
  Furthermore, the burden is not on the state to prove the
validity of the challenged prison regulation but instead is
on the inmate to disprove it. Overton v. Bazzetta, 123 S. Ct.
2162 (2003) (applying Turner and upholding prison
regulations limiting prisoner visitation rights).
  We have held that a prerequisite to the application of
Turner is the assertion of “only those beliefs which are both
sincerely held and religious in nature are entitled to
constitutional protection.” DeHart, 227 F.3d at 51. The
Constitution does not protect “mere assertion[s] of . . .
religious beliefs.” Id. The Prison Officials argue that it is
also a prerequisite for the inmate to establish that the
challenged prison policy “substantially burdens” his or her
religious beliefs. Br. of Defendants at 24. There is no
support for that assertion. Because the Prison Officials fail
to provide us with any reason to doubt that Prisoners
sincerely believe that Islam requires them to eat Halal
meat, it follows that we must determine whether the
prison’s practice of not providing Halal meat meals is
reasonable under Turner.
1.   Legitimate Penological Interests
  The District Court held that NJSP’s decision to provide a
vegetarian meal, rather than one with Halal meat, is
rationally related to legitimate penological interests, namely
simplified food service, prison security, and budgetary
constraints. According to the District Court, if the prison
were required to provide Halal meat, prison officials would
have to coordinate a new program for food service that
would require more kitchen help and could potentially
cause problems between prisoners. It further found “no
evidence of record” showing that Halal meat could be
provided to the more than 200 inmates who currently
receive the religious diet in a cost efficient manner or within
the prison’s budget. App. at 21.
  Prisoners do not dispute that simplified food service,
security, and budget constraints are legitimate penological
                             7


interests. Indeed, our prior decisions preclude such an
argument. See Fraise v. Terhune, 283 F.3d 506, 517-18 (3d
Cir. 2002) (finding security to be a legitimate penological
interest); DeHart, 227 F.3d at 53 (finding simplified food
service to be a legitimate penological interest). Instead,
Prisoners contend that the evidence raises an issue of fact
for the jury regarding whether these interests would be
adversely affected by the addition of Halal meat meals.
  With respect to simplified food service, Prisoners argue
that the District Court overlooked the testimony of Lorenza
Graves. They point to Graves’ statement that it “would be
no great problem” to serve Halal meat received from an
outside vendor to the inmates who now receive vegetarian
meals or to serve Halal meat to the general prison
population if it came from the distribution center in place
of non-Halal meat. App. at 140, 145. Prisoners further
argue that the testimony of various NJSP officials does not
support the Prison Officials’ contention that providing Halal
meals with meat would raise security concerns.
  Finally, Prisoners claim that the District Court
misapplied the summary judgment standard as to
budgetary concerns, arguing that they have submitted
sufficient evidence to show that the NJSP could provide
Halal meat in a cost-efficient manner. Pointing to evidence
that a Halal meal with meat would cost about $1.80 more
per meal than the cost of a regular meal, they argue that
the prison spends $3,650 a year per individual to meet its
four Jewish prisoners’ dietary needs but will not spend
$280 a year per individual to meet its 225 Muslim
prisoners’ needs.
  According to Prisoners, based on the above evidence,
there is at least an issue of material fact as to whether the
policy of denying Halal meals with meat is rationally related
to a legitimate penological interest. We disagree.
  We have no reason to doubt that the District Court
carefully considered all of the evidence in the record. It
noted that Howard Beyer, former Assistant Commissioner
for Operations of the New Jersey Department of
Corrections, testified that due to the large Muslim
population at NJSP, the addition of Halal meals with meat
                               8


would cause a considerable disruption to the prison’s daily
operation. Beyer further testified that the prison does not
experience similar disruptions by providing Kosher meals
because they provide so few of them. According to Beyer,
each Halal meat meal would have to pass through an X-ray
machine, one at a time, which would be prohibitively time
consuming. Furthermore, as with all things entering the
prison, Beyer noted that the Halal meat meals would create
additional security concerns.
  As to budgetary concerns, Prisoners concede that
providing a Halal meal with meat would cost more per
prisoner than the vegetarian meal. Furthermore, according
to Graves, the vegetarian meals and other special diets cost
approximately the same for each prisoner. Graves explained
that to stay within the budget, he and other administrators
must control “what [they] prepare, cook and serve.” App. at
149.
   Although Prisoners have pointed to issues of fact in the
record regarding these matters, they are not material issues
of fact under the applicable legal standard. As noted above,
Prisoners have the burden of disproving the validity of the
regulation. It is not enough to show there are different
views as to the relevant issues and underlying facts. Based
on the record evidence, we agree with the District Court
that providing vegetarian meals, rather than Halal meals
with meat, is rationally related to the legitimate penological
interests in simplified food service, security, and staying
within the prison’s budget.
   In so concluding, we keep in mind the substantial
deference we owe to prison administrators who bear a
“significant responsibility for defining the legitimate goals of
a corrections system and for determining the most
appropriate means to accomplish them.” Overton, 123 S.
Ct. at 2167. Furthermore, this court has noted that when
a challenged regulation implicates security, as it does here,
judicial deference is “especially appropriate.” Fraise, 283
F.3d at 516 (affirming district court’s grant of summary
judgment to prison officials against claims that policy
allowing officials to designate “security threat groups” and
transfer members of group to special unit violated
                             9


prisoners’ free exercise, equal protection, and due process
rights).
2.   Alternative Means of Expressing Religious Belief
  The next Turner factor requires us to determine if the
prison has provided inmates with alternative avenues
through which they can express their religious beliefs.
Where a prison affords the inmate alternative means of
expressing his or her religious beliefs, that fact tends to
support the conclusion that the regulation — here
providing a vegetarian meal rather than one with meat — is
reasonable. DeHart, 227 F.3d at 57.
  The District Court concluded that Muslim prisoners have
various ways in which to practice their religion. In addition
to the pork-free, vegetarian diet, the Court pointed to a
weekly congregational prayer service known as the
Jumu’ah, the opportunity to study Arabic and to observe
Ramadan by providing a special meal enabling Muslims to
comply with the holiday’s fasting requirement, the
opportunity to pray five times during each day, and the
chance to observe the five pillars of the Islam faith. The
Court further noted that the NJSP accommodates prisoners
who celebrate Eid, another Muslim holiday, by allowing
them to cook their own meals containing Halal meat.
   Prisoners concede they have “some alternative means” of
practicing their religion, pointing out the existence of an
onsite Imam, the ability to observe religious Holidays, and
the weekly prayer service. Instead, they argue that these
accommodations cannot be attributed to the NJSP. The
District Court rejected these arguments, noting that
Prisoners were unable to provide another instance, aside
from the lack of Halal meat meals, in which their religious
expression was not being accommodated. We agree.
  Based on the record and Prisoners’ own admissions, it is
undisputed that the prison provides Muslim inmates with
the opportunity to pray daily, attend special weekly
services, and observe religious holidays. Thus, the second
Turner factor weighs in favor of the Prison Officials.
3.   Impact of Accommodation on Guards and Other
     Inmates
  Under the third Turner factor, we focus on the specific
religious practice at issue to determine how accommodating
                             10


the inmate would impact guards and other inmates. The
District Court concluded that it would be difficult for prison
administrators and security personnel to accommodate by
changing the religious vegetarian meal policy. In response
to Prisoners’ argument that administrative concerns would
dissipate if Halal meat meals were provided to the entire
prison population, rather than just Muslims, the Court
found that Prisoners failed to present evidence showing the
feasibility of providing the meals to the general population.
Furthermore, it believed that such an act could be viewed
as imposing Islam on the whole prison community. The
District Court also pointed to security and budgetary
concerns that importing 200 Halal meals would create.
   Prisoners argue that the evidence provides a factual issue
as to whether the provision of Halal meat meals would
affect security, prison administration, or the budget. They
rely on their arguments as to the first Turner factor, which
we have already rejected. They further point out that in his
deposition Scott Faunce, the Deputy Commissioner of the
New Jersey Department of Corrections, testified that most
of the food that comes into NJSP is not scanned. According
to Prisoners, if unscanned food comes into the prison
without security problems, there is no reason why the NJSP
would have to scan Halal meals. Prisoners overlook or
ignore Faunce’s qualifying statement that while much of the
food is not scanned, it is searched. It would be
unreasonable for us to conclude that the need to search,
rather than scan, hundreds of additional Halal meat meals
could not produce security concerns and administrative
burdens. The Supreme Court’s admonition that we should
defer to administrative decisions of prison officials is
applicable here.
  Prisoners also argue that this case is analogous to our
decision in DeHart, where we considered claims by an
inmate that prison officials had violated his free exercise
and equal protection rights by not providing him with a
vegetarian diet consistent with his Buddhist beliefs. In that
case, we reversed the district court’s summary judgment to
the prison defendants and remanded so that the district
court could more fully develop the record as to the
consequences of accommodating the inmate for guards,
                              11


other inmates, and the allocation of prison resources. 227
F.3d at 59-60.
   In DeHart, we concluded that the first and second Turner
factors weighed in favor of the defendants, noting that
denying the inmate’s request for a religious vegetarian diet
“bears some rational relation” to the penological interests in
a simplified food service and in avoiding jealousy among
inmates, id. at 53, and that the inmate had alternative
means of expressing his religious beliefs, id. at 57.
However, we found the third and fourth factors to be less
clear. The crux of our problem with the district court’s
reasoning as to these factors was its conclusion that the
third Turner factor proved “neutral” in the face of “no
undisputed     evidence”     concerning      the  impact    of
accommodation. Id. at 57-58. In such circumstances, we
concluded that Turner requires a “more thorough analysis
of the reasonableness” of the prison regulation when
imposed on the plaintiff ’s religion. Id. at 59. We noted that
there was already a process in the prison for serving
individually prepared therapeutic meals and that the
plaintiff had made a prima facie showing that this process
could accommodate his religious needs by adding a cup of
soy milk. Id. at 59.
  Prisoners argue that the same reasoning applies in the
case at hand. They contend that because there is an
existing administrative process under which the Prison
Officials can accommodate their desire for Halal meat
meals, whatever slight burden the prison must bear is
minimal in comparison to that entailed by providing Kosher
meals to the Jewish inmates.
   Prisoners’ arguments are unpersuasive as this case is
decisively different from DeHart. There are at least two
significant distinctions. First, the DeHart plaintiff requested
only a cup of soy milk to be added to food already
purchased by the prison. Id. at 57. Here, Prisoners request
full Halal meals with meat. Second, the plaintiff in DeHart
was one person. Here, Prisoners are bringing suit on behalf
of more than 200 hundred Muslim prisoners.
  The Prison Officials repeatedly return to this latter fact,
arguing that the sheer number of prisoners who would be
                              12


receiving Halal meat meals would be overwhelming across
the spectrum, creating administrative, budgetary, and
security issues. They point not only to Beyer’s testimony
but also to that of Roy Hendricks, the Administrator of New
Jersey State Prison, who stated:
     From my point of view you are talking about 200
     meals, feeding three times a day, additional storage,
     freezer space for the meals. You are talking about
     additional officers to check the meals. You are also
     talking about a cost factor. So I think that’s quite a bit.
     Normally, this institution feeds over 200 — about
     200,000 meals a month, so it would be a problem.
App. at 176.
  Contrary to Prisoners’ contentions, the record provides us
with sufficient evidence supporting the Prison Officials’
argument that providing Halal meat meals to hundreds of
prisoners would have a marked effect on the prison
community. Thus, the third Turner factor is far from
“neutral” but instead favors the Prison Officials.
4.   The Absence of Ready Alternatives
  As to the fourth and final Turner factor, we look to
whether there is an absence of “ready alternatives” to the
challenged prison regulation, as “the existence of obvious,
easy alternatives may be evidence that the regulation is not
reasonable, but is an ‘exaggerated response’ to prison
concerns.” 482 U.S. at 90. To be sure, this is not a “least
restrictive test” in that prison officials do not “have to set
up and shoot down every conceivable alternative method” of
accommodation. Id. If an inmate can point to an alternative
that would fully accommodate his or her rights at a “de
minimis” cost, we can consider that as evidence that the
challenged regulation is unreasonable. Id. at 90-91.
  The District Court found that the prison could not fully
accommodate Prisoners’ request for Halal meat meals at a
de minimis cost and therefore that the fourth Turner factor
also favored the Prison Officials. As to this factor, Prisoners
rely on their previous arguments that the record shows that
the provision of the Halal meat meals would not create
staffing, security, or budgetary problems. However, as
                                13


explained above, we fail to find such support in the record.
Contrary to Prisoner’s contention, there is sufficient
evidence supporting the Prison Officials’ argument and the
District Court’s conclusion that providing Halal meat meals
cannot be provided at a de minimis cost.
     We thus reject Prisoners’ free exercise claim.
C.     Equal Protection Claim
  We next consider Prisoners’ claim that the failure to
provide them with Halal meat while providing Kosher meals
with meat to Jewish inmates violates their rights under the
Equal Protection Clause of the Fourteenth Amendment. To
prevail on an equal protection claim, a plaintiff must
present evidence that s/he has been treated differently from
persons who are similarly situated. See City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 439 (1985). Turner is
equally applicable to Prisoners’ equal protection claims. See
DeHart, 227 F.3d at 61.
  The District Court rejected Prisoners’ equal protection
claims, finding that they had provided no evidence that
Jewish prisoners received meat in their Kosher meals. It
noted that the record showed that all inmates in need of a
religious diet are provided vegetarian meals.
   Prisoners argue that in reaching its conclusion, the
District Court “had to ignore or misconstrue” the evidence.
Br. of Prisoners at 49. For support, they point to a
statement from Graves’ 1999 certification in which he says,
“[i]nmates that require Kosher meals for religious reasons
do receive meals that contain meat.” App. at 160. However,
they fail to acknowledge that during Graves’ deposition in
2001, he explicitly retracted that statement:
       I oversighted on the meals, the type of meal . . . Jewish
       prepared meat. There is no meat. I oversighted on that.
       There is no meat. These are meatless meals being
       prepared by the Jewish BT Management. The company
       supplies the kosher meals. It’s meatless.
App. at 128.
  Graves’ corrective statement corroborates the testimony
of others. Specifically, both Hendricks and Beyer testified
                             14


that the Kosher meals provided to Jewish prisoners do not
contain meat.
   The record is devoid of any evidence supporting
Prisoners’ contention that the Kosher meals contain meat.
Because all religious meals at NJSP are vegetarian, we
reject Prisoners’ equal protection claim that the prison
treats Jewish and Muslim prisoners in a “disparate and
unequal” manner. Br. of Prisoners at 48.
D.   Motion to Exclude Testimony of Scott Faunce
  In their final claim, Prisoners argue that the District
Court erred by denying their motion to exclude Faunce’s
testimony. We review a district court’s admission of
evidence or ruling on a discovery dispute for abuse of
discretion. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d
408, 412 (3d Cir. 2002).
  Prisoners argue that the Prison Officials identified Faunce
as a witness almost six months after the close of discovery
by attaching Faunce’s affidavit to their summary judgment
reply brief. This, according to Prisoners, was especially
egregious as they had made repeated efforts before the end
of discovery to identify persons with knowledge related to
their complaint. The District Court denied Prisoners’ motion
to exclude Faunce’s testimony but allowed them to depose
Faunce themselves and to amend their previously-filed
summary judgment brief. Furthermore, the Prison Officials
were ordered to pay Prisoners’ costs and counsel fees in
connection with the deposition.
  Prisoners argue that the submission of Faunce’s
testimony violates Federal Rules of Civil Procedure 26 and
37. Under Fed. R. Civ. P. 26(e)(2), a party is required to
supplement its discovery responses if it learns that its
initial response is incomplete in a material way and the
opposing party does not have the new information. Fed. R.
Civ. P. 37(c)(1) provides that if a party without substantial
justification fails to amend a prior discovery response, it
may not use that evidence unless the failure is harmless.
  Prisoners contend that the Prison Officials provided no
justification for their failure to disclose Faunce and they
argue that they suffered harm and prejudice because of the
                              15


Prison Officials’ “complete disregard for their discovery
obligations.” Br. of Prisoners at 55-56. Also, they claim that
the Prison Officials benefitted from reading Prisoners’ brief
on summary judgment which was prepared before Faunce’s
testimony was introduced. Lastly, Prisoners argue that
Faunce gave an expert opinion and the Prison Officials
should have identified him as an expert and provided a
report.
   The Prison Officials rebut any suggestion of bad faith by
explaining Faunce was named Deputy Commissioner of the
New Jersey Department of Corrections two days after they
filed their summary judgment motion and after the close of
discovery. Therefore, they could not have identified Faunce
as an expert during discovery. They argue that Prisoners
were not harmed by the admission of Faunce’s testimony as
they were permitted to depose Faunce, at the Prison
Officials’ expense, and were allowed to supplement the
record with his deposition testimony and additional briefs.
  We are persuaded by the Prison Officials’ arguments and
conclude that the District Court did not abuse its discretion
in allowing Faunce’s testimony. Prisoners were given
adequate opportunity to depose Faunce and supplement
the record themselves. In such a situation, we fail to see
how Prisoners suffered harm from the admission of
Faunce’s testimony.

                             III.

                       CONCLUSION
  For the foregoing reasons, we will affirm the District
Court’s grant of summary judgment to the Prison Officials.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
