morning your honour's thank you chicken broth for the a balance i'd like to reserve three minutes for a bottle please i'd like to start by briefly addressing the sweat lodge and powwow claims which present relatively straightforward applications of existing law and then i can spend the rest of the time addressing the money damages issue which is one of the first impression in this court as to the sweat lodge claim the defendants did not satisfy their burden to prove that prohibiting the native american  accessing any type of sweat lodge was the least restrictive means of ensuring prison security for three reasons the present record cannot support the grounds of summary judgment to defend those on this issue first there's nothing c in the record that in the case that security was the real reason why the sweat lodge was denied in fact the warden acting on the grievance relating to the sweat lodge is a point about monitoring that if you're in a sweat lodge you can't see what's going on does that count as a reason or it counts as a reason it's not contemporaneous in the sense that that wasn't the reason the warden gave when he actually when he initially denied the grievance what about just like an administrative convenience reason that's just you know we don't have the sweat lodges anywhere when he deny rights by logic i think are two parts of that if your question your honor one might relate the cost which has been held in certain cases to be a compelling interest but in this case the native americans made clear they were going to be paying for the required equipment so on there's also the the sort of admitted straight of fact that yes if you grant this request others may have similar requests that i don't think can be a compelling interest under real lupa that's always going to be true and any and any is there is there any evidence in there in the record of the portability of these kind of devices and there's no there are some standards in the federal regulation prison regulations but it just it's strikes me that the  that a place of assembly it essentially an open room can be used for what we conceive of as traditional worship service monies for any number of traditional faiths but of the construction of a lodge of this kind is is  fairly unique and not exactly permanent but certainly a great deal more permanent than devoid ing or void in the rim of its vestments and so forth and bringing in you know from religion  switch to religion be not so not such a big deal but those who's more mechanically challenging it would seem would you have any comments about so they're on that as well there's nothing really in the record because that wasn't an issue that the there wasn't something that the prisoners suggested i think based on conversations with the warden that an indoor sweat lodge might be more convenient for the prison and might help address some of the security concerns and that's why they were talking about doing it indoors but there really isn't much  in the record as to the specifics on the logistics of it so i would sort of be speculating a little bit that's certainly something that the prison officials could perhaps develop a record on if that was their ground for denying the for denying the grievance but that wasn't the ground they gave either that there for example there wasn't room available seems that there was a group of able again the wardens concern was the others might ask for this and other prisons if we give it to you here and then have the idea that maybe the post lets you do things the government can't stop you from doing something that's the exercise you say but it doesn't mean that they're supposed to make great things for you what about that i mean you know well there are many really pick a says involve so affirmative accommodations including for example special religious diets often the person has to take affirmative action to provide that and in fact the text specifies that it in compliance may in some cases require the person to spend money for example should put aside for that but so i don't think there's there's  there's anything in the precedent that draws that type of bright line here and again the prisoners here were offering to take care of the costs to procure the necessary parts and and mechanics  purchase using your own funds the other traditional foods that you for quest and the districts reasoning with essentially well you're getting the palau you're getting the bread so them substantial burden to prevent you from getting the other fruits respectfully that's not how the substantial burden analysis works courts are not supposed to be determining which parts of a religious practice are important or substantial from a theological perspective the questions really one of sincerity is the motivation for the particular act respectfully your honor in fact really says it doesn't have to be aware of the of not having it is a substantial burden right well that the district were actually in this opinion acknowledged the that the native american opponents had alleged that in their declarations that having these foods was required that's what that's what the districts and so he certainly recognized that that was in the record his reasoning was well it's not a big howard how do these things work going forward so you put th lot of jury trials well i think that the prison officials are entitled to question sincerity in the first instance they could build an initial record by for example conducting an interview with with the prisoner they could deposed the prisoner to ask  questions so i don't think i would necessarily always be a question of fact in many cases i agree sincerity would be a question of fact but the only alternative is to get into the religious question of whether it's you know does this religion  the orthodoxy of this religion require this particular conduct how important is it to the religion and those are questions that the supreme court has said courts are not equipped to to evaluate actually a question about the money damages your point so i don't think this is argued so this may be something you want to respond to in a bottle or by supplemental briefing but you know there's a line of cases out there that says when you have one statute we have one interpretation so you don't you don't get to mix and match years so we have sauce in that says you know we've construed appropriate relief against a government and and there is quite a case cart versus martinez which is an immigration setting but it's really a very similar case where that the court had adopted one interpretation the government comes back and says well you know in these circumstances with these people we think there's a reason for taking the phrase the word and giving it a different interpretation and i think i think that's exactly what's going on here in terms of whether appropriate relief should mean one thing in official capacity suits but something else in individual capacity suit so i mean i have a second concern but do you have a quick thought about yeah yeah for sure  i think then answer is the word in question is appropriate propre relief and the supreme court and saw someone said it's context dependent and the context that they said was relevant in sauce and on was that the where the defendant is a solver so i think what congress was doing was saying we're going to tell you exactly what type of relief is israel procreate in every case we're going to say appropriate relief that's going to be case by case and where the defendant is like i like your answer by putting the emphasis on appropriate but what i would say is the one statute one interpretation rule would tell us to look at the word relief and relief across the board means non money damages i don't think that's what's awesome and said i think it's often said if money damages or relief they're not appropriate relief in situations where sovereign immunity is a relevant background principle where the defendant is a sovereign but in situations where the senate is not a sovereign and the ninth circuit city of human decision addressed this there the defendant was in unison municipality also not protected by sovereign immunity they said judge kleinfeld subpoena and said look at the ones that you want to retain i don't recall whether he addressed that in particular but he certainly as the decision was after salsman said yes that the context there as the supreme court said was the defendant is a sovereign here the defendant is not a sovereign and so what's appropriate is going to change so other i guess the short answer is appropriate is necessarily a word that is that reflects you know the fact that in different situations it's going to mean different things to do this well it's hard to know what else they were trying to do because if you will except that the statute provides for personal capacity actions which i think is quite clear from the taxed the only relief you could really ever want in a personal capacity action is money damages because if you want to injunctive relief you just sue the state directly the only prisons yes that's true it could be for private prisons but that's a relative i mean the phrase any other medium that's pretty frequent private prisons i'm not sure if the supreme court has ever decided whether they're they fall within the let me just give you this other way of thinking about it so the thing that's amazing about the spending causes it allows congress to regulate in areas it could not otherwise regulate that's not just money damages against states that's areas where the commerce clause might not apply you just all kinds of things so the idea is the state lets them do this because they're not coerced they're freely taking the money congress is allowed to say in return for the money we're now going to regulate an area we don't normally regulate prisons are pretty core state functions so why do we have to keep this focused on money damages why not just say no no all over loop was a very big deal in terms of regulating state and local prisons so everything about it requires a clear statement not just money damages does that make sense well i guess my answer would be you're making it sound like the only extra constitutional thing they might be doing here is money damages and i'm saying no no no this is a big deal i'm not even obvious to me they have commerce clause authority i mean inmates don't traveling interstate commerce unless it's a really bad prison so right i mean i know there's a substantial effects test but applying that to prisons is pleasant condition on the receipt of federal funds are permissible under dall whether they pose a federalism concern and all sorts of other constitutional challenges to the statute as a whole and rejected those said the other condition is fine so really the only additional question that this case presents is congress did in base its decision to use spending clause in our carter decision it's possible there are there out there at the edge of the line as to what you can do so the point i'm making is you are you're everything requires clarity not just the money damages part well i mean i don't think i would or would agree with that the statute was is that it does pretty clearly provide for personal capacity s the injunction would have for it would have continued for she would not need injunctive relief against the individual the only time you'd ever sue an individual is individual capacities to get money damages so you  classically a statute that turns on money damages let's face it i mean this is about people getting to exercise their fate they want to judge that wheelchair is the key point but coming here for money that's absolutely right and i would just point out under the  money damages they can obtain in any event are nominal damages that confirms my point well no i don't why why think about this is the money loss i mean well i think that the difficulty is if you do not allow for any monetary relief even nominal prisoner for example by ice in the white transferring a prisoner moves acase i mean if you transfer the prisoner and there's a sweat lodge there yes that's you can call it moving a case but i would call that a victory and if they move them to a another prison where there's not a sweat l they have the same claim it may not always make the case but there are certainly many examples and just the sort of my arse the sentence also among lays out a number of them where courts upheld that the transfer does move the claim and i would just ask your fees point if you if the case is mooted i do not believe you're entitled to these i don't believe that counts as a victory for purposes of obtaining these so really the deterrent effect has to be some prospect of monetary relief even nominal  and i think that explains both why congress put it in the statute and why the necessary and proper clause would permit these ok thank you thank you you will have your full rebuttal the concern for the department of corrections but also the safety security procedures that are put in place that religious concerns of the inmates you're on or a think that the religious concerns would be pretty similar are cross a security specification level however i think it's clear that this was the state's compelling interest in safety and security is significantly magnified for a death row inmate instead of a minimum security in forestry camp according way the minimum security inmate who is who was deemed to be less of a danger to the facility in the public at large may have an opportunity to get a sweat lodge before the  way it did you're only after the fact arguments that make sense they work a lot better than if they came from the bureau or released this opinion and the opinion said we're going to have a rule for death row inmates we're going to have a rule for others we're just trying blind and i'm assuming that that will be contained in the forthcoming response to the problems what would be wrong what you're losing for now i mean it's a compelling interest test it is a compelling interest without the opinion and when you they don't do a great job there's monitoring which doesn't make a lot of sense you can put a video camera i mean people up to take showers you have a similar problem there those concerns are all specifically considered they say they haven't done it before you know in the centr supreme court case they completely reject that idea the idea of well we just never done this before that's never an explanation that suffices for strict scrutiny yes your honor the sweat lodges have been deemed for minimum or medium security institution is a less magnified version thus the inmates religious procession is over the over able to overcome the state's interest in having a sweat lodge and it's because the safety and security concern for medium security inmates are significantly lesser than they would be for a death row inmate on the site is an audio problem here as judge sudden is noted that the reason that was actually given initially anyway was strictly the institution did not want to set a precedent for having these sweat lodges and that if they allowed one here or there might be requests that other parker in his initial response to the inmates it's to tional grievance set up that they're afraid of setting precedent for their party of department of corrections and i think that is a fair assessment given that the state's interest in safety yes your honor i think it also establishes sufficient basis for the stay safe and security concerns i think every case that is considered sweat lodges have determined that sweat lodges propose substantial safety security concerns so the writ in the re  that a sweat lodge creates significant concerns because it is a sacred space for department correction officials are allowed to enter with it is in order to generate steam and for the sweat lodge you're dealing with inherently dangerous objects you're dealing with fire you deal with heated stones if you go in with the internal or indoor sweat lodge you're dealing with infrared machines that create any number of dangerous conditions and there's no way to monitor that report just write it and your honor again that will be forthcoming writing you seem to have a pretty thank you i appreciate the comment from the bench wondering if you're working on it but just seems to me just fairly extensive safety can sit concerted review to determine if we can provide a sweat lodge for the partner of corrections inmates and if we can provide a sweat lodge does that method need to change for the death row inmates and it seems given their status as the most dangerous individuals that are incarcerated the department of corrections that it would require a different procedure to handle death row sweat lodges different but maybe not nonexistent dakota texas oklahoma that have a much more organic tradition of native american tradition of religious expression and none of those facilities have deathrow sweat lodges moreover in the federal government the classification system and they only allow the bottom three tiers of offenders access to a sweat lodge so for the analysis for the kentucky department of corrections it wouldn't just be death row inmates it would be medium security inmates as well and that can come with a number of people so we have not been about identify so the best of my information belief there are no death row inmates anywhere in the country that have access to a sweat can the dignified amy deathrow got this what is this just in make religious beliefs and practices guide that contemplates sweat lodge access but i guess what you're saying is it doesn't really address  death sentence prisoners yes your honor there's both the federal in the state federal religious practice manual the state kentucky state of religious practice manuals largely derived from the federal manual and as i said earlier the federal sweat l inmates but it's only for the bottom three tiers of security classification so what's the big deal on the power food argument so it does seem like a pretty good point that the district court was relying on of which were not allowed to get into so i think you understand that point yes your honor that leaves sincerity as to whether they really need these other two food items and that it's pretty classically a fact question so as in traditional foods are yes sure other jobs but but they're really seemed to be no limits or no tests to determine whether their belief that the foods are necessary in traditional or actually sincerely held but if if they're going to stand the expense what difference does it make what it is not even much of an administrative maybe of our general administrative concern about acquiring it conveying the food to us there could be administrative charges levied for that as well i would imagine issue on if they're going to if they're going to stand the expense over their person accounts  what what's the problem is their risk in particular in buffalo meat as compared to beef that i'm aware of i can say that part of the issue is they reflect less of i think it's a leaner and less of a seem to come within the range of what you might have the reason buffalo meat and corn pemmican are authorized because these are deemed traditional familiar foods of the native american face many of the cases that have to be questioned whether a particular religious item other p tobacco requirement whether a particular religious rights all stem from cases that the inmates were a long time and here it's to the native american faith the court set out specifically that they were raised in the since five years old and and when all the way up and got to prison and when it's still embrace their faith here these are not this is not seem to be the fact for instance the main plaintiff in this case randy height has recently changed his they did say that it's just an assertion your honor what more would you do and that's the question because as of right now there's no boundaries there's no limiting language so it's just easier as they say i think you know a lot about this one thing to think about with native american they're entitled to pay o t yes your honor that's part of their religion and the facts of that case the plaintiff in that matter was a long time in here in the native american faith and is able to show that the ingestion of paoli was central to his understanding of his religion similarly the tobacco cases that set out the percentage of tobacco that's allowed to be used in the peace pipe ceremony and the sweat lodge ceremony all are plaintiffs who are long time in here and native american favor able set up specifically why these particular items are specifically central to their religion here this is buffalo meat and to the best of error is the best of the record the best of our knowledge these images never actually even had buffalo meat and there seems to be no way to make determine a tie to determine whether their belief that they were tired of the buffalo meat is insanely held or just they sold them in a manual somewhere they want that benefit and we would then again given that of power well they must have a papa john's pepperoni pizza and there'd be no way to distinguish there were quite the requests for buffalo meat for question up but from a public pizza and there's no testament from the present standpoint that will allow us to full trial time others very quickly on the sweat lodge i think we heard various reasons why a sweat lodge might not be appropriate but again those are not in the record glad to hear that the defendants are preparing this report contacting other prisons to gain insights into their experience i think the the right result for this court at this stage is to vacate the ground of summary judgment to remain and and perhaps allow the commissioner a certain amount of time to provide that report to substantiate the record then the district court can consider that full record on the merits with respect to the powwow i think my i think counsel for defense was emphasizing sincerity but again sincerity was not questioned in the district court as to mr hyatt and his religious faith he's not one of the native american appellants in the case so the fact that he is not and that he changed his religious affiliation is not is not relevant there something in the record that shows native americans said hey this is part of our faith yes so that and this that is that's their it is they said it was quote key to the to having the powwow that's a page i d one ninety seven to two hundred is affidavit of plaintiff fully and the others have other native americans have similar affidavits so that is in the record finally with cases for example analyzing qualified immunity claims undervalues the phrase appropriate relief i believe the language of relief was drawn directly from a referral i don't subject to a judge called things i would be eager chance to respond i mean what i like plaintiff might have something and they do for sure all it'll all be happy to present that i mean the reason that most of the courts that have rejected personal capacity actions under the loop of not done so as a