is the wrong word but of of that particular faith are we talking about pittsburgh green dallas i understand there was some reference to fifteen to forty at some point right by mr sharp but i don't think that was credited by the district court because it's seems that reading the cases that numbers do make a difference here and with respect to group worship if you get obviously question judge a found instead that there had been zero individual requests that so we really didn't get clarification on the population that's a resolution is not i think she made a factual terminations well i don't think she made a factual finding  sharp the entire burden to disprove every conceivable pin a logical interest that was with respect to the first turner problem one that corrected because it in fact it is mr sharpe's burden under the jurisprudence with respect to the overall burden of proof this we're the magistrate judge may have misspoken was really with respect to a burden of common going forward with evidence as to the first turner factor i i believe that that's entirely correct and i believe it's a critical point because when you look at this this court's decisions and cases are wolf and jones versus brown if you can't get past that first step interest you're clear as judge sirica is questions really suggested because i don't think we're getting ahead of ourselves the number of practicing of bashi members who are members of who are also sunni muslims just as were the you moms both at pittsburgh and green is important here i mean the people watch the interest is implicated by the amount of prison resources that must be used time this place space being made available and and money i mean that's clear isn't it i think irrespective of whether the magistra not well you know certainly to the extent that the providing an accommodation requires more resources than not providing accommodation as a general matter sure that is clear there were play because the critical aspect of this first term apart is not whether or not there is an interest but it's whether or not there's a rational connection between that interest in the moment ok aren't aren't protestants for in service only on the same sunday do that but i can't speak to that point but i can say that there's evidence in the record that for instance i thought there was a dance in the record on that but there may be about protestants yes there certainly separate protestant and so catholics are but there's also evidence in the record that there were separate nation of islam services at one point all right we're does it stop and let me ask you a question that has bothered me tremendously about this case the more time i spent with and that is a question that it is in a way institutional and even then it goes not only to the role of prison administrator but the role of this court the the sci's the prison system some not the views of did they not the a mom's here also sunni muslims are differences of state where they erred was in denying their accommodation was based on their disagreement with those doctrinal matters that is to say they did not deny the combination request because it was too expensive they didn't because they didn't feel that he really needed to do what he said he needed to do with the record is a little muddled on that isn't and if you could help us straighten that out at that one point it appears that the request is tonight because they they think m agitator that he's trying to form his own in effect prison gang it's really not religiously motivated he's trying to set himself up as a leader and have some followers for reasons that are divorced from religion entirely there's there's evidence in the record that a fact and yet later it seems that that the the state walks away from that rationale can you shed some light on that well i think you're  there are one can attack whether or not a particular belief was sincerely held religious in nature and that's never been a dispute in this case and so it's really not been a part of our analysis after you get to that point that initial burden is on the defendants to come forward with some sort of legitimate pain a logical interest so that both the plaintiff more important the court can assess whether or not that irrational actually exists let's not much of a burden though at that stage is it i mean is it enough for the commonwealth here the prison system to simply identified their reasons and then that burden of going forward shifts to mr sharp right as part of his overall burden of persuasion as to why those reasons are wrong why they are weak why they can't be supported i think that's generally exactly right i would say that that there are there could be answers but by the i mean if the commonwealth doesn't at least identify what they are then mr sharp is shadowboxing he doesn't know what to knock down but again it's a pretty low hurdle for the commonwealth in the first instant most courts use the word minimal i do think that there can be instances where evidence is required to meet that burden and i believe the courts recognize that previously it and i think it's interesting to look at the trial for incision in the in december two thousand and four on the summary judgment motion of the defendant's fathers to the first letter of complaint because there is a textbook turner analysis where they come forward with their reasons and it pertains only does the outfit's variably but they come forward with their reasons citing i believe cost and security and and ask a couple questions first would you agree that injunctive relief is no longer an issue in this case because mr sharp has been moved to a new facility and his treatment at the other prisons is now irrelevant ascerta facilities specific well injunctive relief for what i mean there's no we have nothing here that you can help me out that i'm not aware of any assertion that he's got a problem a greater for  are all right so if we if we take it for sake of argument for a moment that there's not going to be any injunction here because he's in a new prison and there's been no complain about trouble for him to grieve for then we're talking just about money  these officials in their individual capacity can still stand and i'd like you to i mean we got some twenty eight a letter some you folks but i'd like you to explain to us why the reasoning of sosman does  spending clause legislation and as such under separate congress isn't titled to attach conditions on the receipt of federal funds that allow to police against their misuse may i interrupt you just at that stage based on something that was just said and i assume that it is accurate to conclude that you have not any point raised or suggested or certainly argued that so wrong where did they miss that just disappeared for a moment about spending clause jurisprudence and goneril what we see in the supreme court decisions is a reliance on contract law where a statute is unclear  that there's going to be this intrusion on the running of the state so my my question to you is what do state officials care what are the human beings who occupy those positions care whether you call and say i'm suing you with your official hat on or i'm soon you with your individual hat on if you're suing them you're suing them and the interference and the the problems created for the state are just as real whatever label you hang on it doesn't the state have the very same interest in the sense of not having its programs interfered with whether you choose to call it an individual claim or an official capacity claim well the state pastor accept a certain degree of interference i mean whether or not  that's that i mean sussman says they don't susman says without a clear delineation of what that burns going to be they don't have to accept it with regard to this one particular issue of sauce and said that there was an eleventh and then the analysis i mean there's no doubt for instance that there can be lawsuits sure injunctive relief under our liver what might my question to you though mr bailey is isn't the same thinking that informs the sovereign immunity analysis persuasive as an individual capacity claim analytically yes they are different because the individuals are not the sovereign but isn't the end to be achieved for sysfs leave the same that is not having state programs interfered with unless the state knows about it clearly in advance i know i think that's a very good point i think that is the case but we have to look at the way of the statute and whether or not it puts the state on clear notice that this is going to be an issue and here the supreme court said it didn't i didn't it didn't then the congress is certainly entitled to provide the means by which they can police that the expenditures of federal money so that ephedra funds are being misused there's some means to redress that because we cannot have federal funds on the right in violation of a law that's the necessary proper clause that's why congress is entitled to create some mechanism some means by which the use of federal funds policed and it's done that in our loop or by providing a private right of action for individuals like mr starr otherwise the misuse of federal funds goes under unredressed and particularly if injunctive relief is not going to be available and instances like this then you have federal funds being used to violate federal law with absolutely no remedy whatsoever because there's not going to be any injunctive relief that will correct it on a going forward basis and there won't be any monetary damages available to redress  so that's why i think it's critical that there be an availability of monetary damages and individual capacity flames and are we going back to the accommodation issue again what is what's in the record about the number mr sharp was denied his individual right to practice his religion he wanted to do so in a group basis i'm sorry all right but in here the last part of the your claim as i understand it is that he wants to be able to worship well who has the burden of proving the numbers i think when you start to talk about specific numbers that is and a right to communal worship that is an issue pertaining to the qualified immunity dallas and i green this is this is a real group real numbers really interested it warrants the resources of the snake to lead us communal worship doesn't he have to do something to prove that before the state gets into it i don't think so i mean he makes that request and to the extent he does have to say it's out there there is the evidence in the record at the very least of multiple individuals at s c r pittsburgh how can the state ever make a resource lease determination one way or the other if they don't know the number of the flock how do they do that it may be very it may be difficult it but the problem is they never came forward and said any of this they never asked the questions of this courthouse and they never suggest that's why and that's why the burden of proof is is an important issue in a case like this it absolutely it is and it is all in the defendant's at this prong not the burden of proof the overall burden of proof is clear under the cases and that is with your client mr sharp there may be a burden there is a burden of going forward with something as to the first corner prong that's that's the real question i think that's being pushed on you and which is the defendant does under china have a responsibility to come forward with the state of question that's been put to you is before the government's got to come forward and do something like that in a communal worship plane like when you've got doesn't the proponent that is the claimant have some responsibility come  so he could just say me and my imaginary friend he's got it that's just the opposite we me and one other person if frankly or i think that it is if there is a claim that i cannot worship with the existing service that once you make that request you've made a legitimate accommodation for us so far as as you have the sincerely held belief it's religious in nature and you've made that accommodation for a while that's enough to impose on the and they're free to constitutionally deny it if they do it for the proper reasons it and so perhaps in a group of one worship situation there is an imposition of cost and birds etc but we don't know that in this litigation of his fundamental force in iraq but imposing this extensive burden on him we are opening up prison administrator's to unrestrained discovery here because so long as it is his burden but i think we understand your point you're coming back on rebuttal yes thank you  morning dave please the court kemal alexander moritz lee from the office of the attorney general pennsylvania for the good morning good morning i would like to begin with a simple statement of our position in this case as regards the burden of proof on the first turn or prof i think that problem in this particular case in light of record and in light of the magistra findings and conclusions is more apparent than real well may i may i ask you however if you would agree that the magistrate judge  saying we read the supreme court's holding in overton to subsoil n t o overrule a court of appeals earlier line of cases that placed a burden upon the defenders of prison rules to demonstrate that the new jersey legislature might reasonably have thought the statute we advance the interest of candidly i do not think she urged and i devoted a great deal of my brief to discussing how in fact it would have gone about that a little more directly than by inference with patience with the pens on what you think turner means turner is pretty clear what it means turner by its terms talks about logical existence i think that what turner was saying was and in that case turner itself arose from a trial like this so in fact as indeed was the case in and beer versus banks which ar from a motion from some for summary judgment in certain circumstances it may be convenient for an sickly it may be in fact necessary in view of the mark of the circumstances counsel do you really think that the magistrate judge did not urge when she wrote the plaintiff has utterly failed to care to carry his burden to show otherwise given his burden to negative every conceivable legitimate penal law to go interest which fact the statement of the rational basis test that applies in situations where strict scrutiny does not apply may i simply clarify is this it was this a correct statement for purposes of analyzing this claim on your honor i don't think it's necessary first for me defect to defend whether or not it was particularly a correct statement in this particular case flows from it that's really not address that everything in this case flows from the bad straight judge's decision that the that term was no longer good law and it was on mr sharp to do just what judge smith read to you and they give every conceivable then i make the position quite clearly that she was correct but and i've i've analyzed that in my brief i've looked at it in some detail i would simply want to look at two other factors one is let me let me ask this maybe getting this can you when you assume for discussion that we didn't think that's right that we didn't think a sentence from overton or that kind of weight  could you still win conceding in argue window that she was wrong right can you i would be happy to concede in argue end before this panel that she was wrong i believe that we win and that's what i've been trying to argue ok a all right they cause i think i i think you ought to proceed on the assumption that she was wrong on that very well very well i i bow to the court's determination on that matter hope i will in fact return to where i began which in this particular case we have a lengthy history of cases including most recently a case by judge van ascii recently joined you on this batch in two thousand and eight when he was on the middle district bench a long line of cases dealing with situations where an inmate demands an accommodation in the form of a separate congregation and those cases in and  themselves discuss the existence of a legitimate pina logical purposes that are necessarily implicated every time that type of request from accommodation is made kelso i haven't and i'm is on isn't in me correct you are i mean why aren't you arguing that i was careful in my questions with your adversary yeah isolate the burden of going forward as to one turn or factor from the overall burden of persuasion which seems to be clear here the overall burden of persuasion is ultimately on the proponent that is what all the cases teach including turner and ultimately it is the proponents duty in order to succeed to prove that in some respect what we did was an exaggerated response that in light of legitimate people logical purposes in light of our  need to handle our resources correctly and by the of of the existence of a reasonable alternative if that minimize cost this is simply a pretext on our part that is how inmate wins a case like this and there is nothing in this record that demonstrates that that burden was met what there isn't this record as well as the hit the fact that cases of this nature at this point and this court has in respect to our prohibition of u c c materials used decisions in other cases to demonstrate that would the existence of illegitimate be a logical purpose independent of evidence and that's exactly what we can do in this case but we had  policy in line with judge alba search's opinion some forty years ago in the ghetto marker to minimize the proliferation of separate religious congregations we do it with protestants we do it with catholics who also szell this is a crucial point once you once you're in that mindset you are necessarily making judgments about doctrinal differences right like you're really no different than a methodist is from a presbyterian not as different as a catholic is from a presbyterian i mean that's that's the analytical mode that the that that state believe in a certain particular way then there may in fact under the teachings of this batch be a right as it wore to a religious accommodation mr sharp as a as a pro s advocate seemed to do a pretty effective job in getting the moms to acknowledge that they thought he was a heretic and that it was their responsibility that in months to make sure everybody else in the prison knew that what he believed was h and contrary to your inappropriate views of sunni muslim that islam that had absolutely nothing to do with the fact that he didn't put his religious request on d c form fifty two at pittsburgh and when he did so at green he was the only individual who identified himself as a bosh isn't there isn't there evidence in the record that that father tirzah said we don't use that  there's there's the the record is is very confused but there's a finding of fact by the magistrate judge that he in fact procedurally defaulting at sci pittsburgh by not using the proper form i think i'm entitled to rely on that finding of fact in the view in view of disputed evidence this was a bench trial the judge may have made a mistake in terms of how she looked at the turner test she may have in fact looked to the beginning as you suggest and  looked at the end and put it at the beginning the ultimate burden of proof in any turn or situation is in fact on the enemy but this court recognizes its interpretation of turner to be that there's an initial burden of production on the department of corrections to somehow satisfy the the demonstration of the existence of a legitimate being watched a purpose and what is that burden specifically is it sufficient to simply enumerate the reason state the reason yes and they have to be they have to that that point to the part of corrections takes the risk getting back to what  and makes ultimate burton is of of falling victim to a pretext in the house i mean if it's an exaggerated response if the inmate if it doesn't make sense if it falls to  to an analysis of common sense or evidence that in fact that's a risk they take but all they have to do is to be able to stand on the circumstances in particular i would suggest that that your jurisprudence which incidentally is always in every case the say look this is burdensome we lack resources and sort of make a blanket statement do you have that you have a burden to come up with a lot of specifics really i think if the rational basis like in wolf versus ashcroft watermen versus farmer isn't apparent the commonsense i would suggest doesn't have a history of being evaluated as separate congregations to with an analysis of what the recurrent legitimate pain a logical purposes are or some other reason that would fit along those side those those areas then your jurisprudence teaches that under those circumstances it's not simply enough to say we have a legitimate pre logical purpose that you have to somehow introduce evidence that brings it all together how could we clarify our jurisprudence seriously if you were writing the opinion or if you were asking us specifically how to write the opinion with which should we say your honor i am honored that you would you ask i well i'm just being lazy i want you know what you to type i think i would i would say that in fact in all candor the best way to deal with this is the put a burden of production on the government to identify or to to identify a legitimate penalisable purpose or to which which burden however may be met in circumstances where the situation is a recurrent one and cases exist identifying which it would be a logical purposes or which burden may be met by an articulation of what those those purposes are in terms of the answer or which might need to be met in particular circumstances by the affirmative presentation of evidence at which the burden of production immediately shifts back to the place the burden of proof of a production and persuade production of persuasion burden and then the rest of it shifts to the state at that point so as it is it fair to say that the way you envision this working is that and maybe you and mr sharp aren't really all that far apart at all on this that a plane the fast to come forward and say this is what i'm asking for in the way of religious accommodation i have this belief i don't feel i'm able to worship with this group or in the way that the prison is given the resources to worship allow me to do something different give me some resources to do something different and once they say that then the state the commonwealth has to say look request and at that point then it's back on the plaintiff to say well those that's those are valid for the following reasons if i restated what you were saying that that's that's a very well put  that's that's how and b i would attempt to square the circle in this particular and it does sort of partake a little bit of a title seven sort of analysis in that respect right yes your honor that's that's precisely how it works is the the the fact the only point i would like to emphasize is we did introduce evidence in this case we did introduce evidence perhaps haphazardly but father monica testified it's our policy not to have a proliferation of religious congregations here but we don't know how that played into the court's analysis because the ministry just said it's not going there right well except if you look at page twelve she she says on her findings and conclusions i suggest that if you read that specifically may i may i say yes thank you  she says on page twelve of her finding something that i said to my mind in my brief is something like assuming i'm wrong when doe and that the burden was on on the the department of corrections nothing mr sharp has done in this case has convinced me that he has proven his case that's to the extent he presented any evidence to rebut the rationality of the denial which paragraph are you i'm looking at the last paragraph on page twelve no no what's the paragraph number you summary yeah there aren't any you didn't give us any late they are the documents we don't have and there's only one and then there's a two and it's somewhere in two first amendment claims is properly entered in favor of sci green defendants then star thirteen alternatively in order to make out a  there are cases that have found qualified immunity under any conceivable way of looking at the facts in connection with any of the individuals involved in this particular case one acquire us to be doing it in the first i in fact a violation of his first amendment rights or a violation of his his our luper rights which i think so slim and does speak very strongly to  just before we get off of that is it possible to say on the qualified immunity issue that there is no clearly establish right to group worship or is that already been established there is no that is what she said and that is what i think your case is say that it's not clear there's a right to group which are as long as there's a substantial makes what is a substantial number whether the record in this case where she disagreed and found this fact that although although i'll grant you sharp testified that there were as many as  were preserved forever else emerged and which were not subsequently referenced in sharpe's grievances were you would have thought he would have referenced them if in fact they were made and based on all those considerations what a we have is is as what is a substantial number and you know as far as may may please the court as far as our lucas concern you the the the little  seems to say that the nine somebody a separate congregation can never be a substantial burden on his right to practice that's indeed how judgement been asking his opinion took it which was affirmed in a non presidential opinion by this bench and in that case because because it doesn't provide force you to give up your religion in return for government benefit and it doesn't force you to jorja religious beliefs just doesn't are right for me numbers matter that's something you've conceded here in your discussion with of course numbers matter but but we don't know how many right but that that's significant because in your briefing you talk about under scott versus hor as a matter of law there's he's a cop he's in his interests of the economy but that that really can't be the case because many numbers do matter and we really don't know what the numbers are here right but i think it was his burden your honor i would suggest at that point to show that he had that there were a substantial number of inmates whatever substantial means and i think that connects back to judge circus point that because that's such a murky area we can't say we have a clearly established right that maybe my only question at this juncture was whatever that number is it can't be the case that a previous president like scott versus board resolves the issue because it's a fact specific question how many people have you got and whether that needs to be a comedy right correct although you can triangulate it with smith first pilar that involves fifteen  if we are ready to turn to sawsan for a minute what's the what's your response to mr bailey says are certain that the implication of sawsan hass that the there is a private right from the standpoint of spending clause legislation which is what sauce woman is is an end ambiguous term in so far as any form of monetary relief is concerned that's why found that the eleventh amendment was not waived by the states by accepting federal funds with respect to our loop in terms of state agencies and entities the state itself its individual sued in their official capacity a foreshore a i submit the that if in fact appropriate relief is in a case like that too ambiguous to find monetary relief was necessarily clearly in honey ambiguously expressed which is a requirement of spending clause legislation as regards states which are in fact the contracting parties in dealing with the federal funds to which our lupul would relate then obviously line corrections officers chaplains and prison officials in those particular circumstances it cannot be understood to specifically impart well monetary liability on them when we have we have circumstances under  other laws where we say their sovereign immunity can't go after the state there but you can sue people in their individual capacity for damages what what is it what's well those are fourteenth amendment section five  cases and that allows them to be sued as individuals and there's a long line of jurisprudence back to the united states supreme court that in fact allows a level of liability for under section five of the fourteenth amendment but the city of burned versus flores got it that so we're back we're back to spending clause and if you put i suggest as some courts have said if you would put individual liability on individuals who work for state agencies in states that one recipient of federal funds as justice thomas suggested in a footnote in powder versus williamson this is the an act that would be unconstitutional under the spending because the spending clause works differently than the fourteenth amendment it is not an accident under under works differently the section one thousand nine hundred three which is an enactment under the fourteenth amendment it is not a designed to punish individuals who abuse people's constitutional rights under color of state law it's all it's a law that's designed to compel individuals who have tak federal funds or states that have taken federal funds to meet to meet with the conditions that it imposes on them for taking those federal funds and a contract with a law in alice's is what the united states supreme court says you should put on this type of legislation and it's quite obvious that that father tirzah and deputy chris seve did not enter into and a contract with the united states of america for point four for six percent of your salary and that would that would be in fact a way of abusing our federal system and the state and federal points courts been applying the standard for twenty five years in a trouble to the district court did so in this case in two thousand and four so i you know as far as what the opinion should look like your honor i think it's been burdens of the obligations of the trial court are when conducting this analysis and central among those with regards to the first prong of the turner analysis the courts must describe the interests purportedly record or no basis for this court to then come around behind it and conduct that analysis in the first answer so that's what we're lacking here and that's one of the problems with with what the trial court that was regarding this what the government's actual burden is i think it's interesting to note the beer versus banks decision where it was the parousia decision but i believe it's a binding opinion in which it said that the state must prove more than a formalistic logical connection between some random pin logical interest in the conduct it's being challenged i don't think that we can do this by looking at prior case law and i believe your honor was exactly right the mere fact that costs may have been a legitimate reason to deny an accommodation request and some othe basis there was a question that came up about the form that was being used that sci pittsburgh your honor mention that said he didn't used the the form i wanted to just also note that th all sorts of documents you've kept everything but you don't happen to have this one and that was the basis for her factual determination to pretty sound basis for a factual determination i think the district court looked at a lot of circumstantial evidence and did not that he never submitted an individual request contradicts all of the testimony from the individuals that were there who also has a fight and we played this out of the brief with the actual testimony but that he did in fact come forward with other inmates and submit wanted to speak i'll give you one more minute think you are clearly established i think there are two points to keep in mind here one is the communal work worse of whether or not that's occurred there was i was right that's not the only is that right at  doesn't require you to do that and therefore we can request so uncomfortable position and so at some point don't resent authorities have any judgment on them along those lines by saying you know a methodist